STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 48 of 2017 Date of Institution : 17.01.2017 Date of Decision : 23.05.2017 Jagjot Singh son of Rupinder Singh, resident of House No.3, Prabhu Simran Kendra, Chhoti Jawedi, Ludhiana, Punjab. Complainant V e r s u s Manohar Infrastructure and Constructions Pvt. Limited, through its Managing Director, SCO No.139-141, Sector 17-C, First Floor, Chandigarh. ....Opposite Party Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER. MRS.PADMA PANDEY, MEMBER. : Sh.Sanjeev Gupta and Sh.Devinder Kumar, Advocates forArgued by the complainant. Sh.I.P. Singh, Advocate for the opposite party. PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The complainant for his residential purpose, got allotted one residential plot, measuring
250 square yards, in a project, launched by the opposite party, namely Palm Garden situated at New Chandigarh, Mullanpur, Punjab. Copy of the brochure vide which the project was publicized has been placed on record as Annexure C-1. At the time of purchase of the said plot, one printed application form Annexure C-2 was got filled up by the opposite party, from the complainant, on 29.10.2011. He paid booking amount of Rs.13.50 lacs, being 30% of the total sale consideration of the plot, which was fixed at Rs.45 lacs. He was assured that all the approvals, sanctions etc. to launch the project, in question, were available with the opposite party and possession of the developed plot will be handed over within a period of two years. It was assured by the opposite party that approvals, if any, under process with the Government, will be obtained within next two to three months. Alongwith the application form (at page 29 of the file), payment plan was annexed, showing stages of time, to make payment towards cost of the plot. The application was termed as expression of interest to purchase a plot, in the above said project. On demand raised by the opposite party, the complainant further deposited an amount of Rs.9 lacs, on 21.02.2014, vide receipt dated 18.03.2014 Annexure C-3. It is specific case of the complainant that when making above payment, on 18.03.2014, the original application Annexure C-2 was handed over to the opposite party, under promise that it will be cancelled and fresh acknowledgment will be issued. Accordingly, new acknowledgment receipt was issued on 21.03.2014 Annexure C-5. In the original application, it was only stated that only EDC and PLC charges, will be leviable. However, in the second acknowledgment receipt dated 21.03.2014, it was further added that IDC will also be leviable. Such charges were added in the price of the plot, without any justification. Alongwith the second acknowledgment, registration no.PG/2411, was issued to the complainant on 21.03.2014, copy whereof is placed on record as Annexure C-6. On demand raised, another amount of Rs.6.75 lacs, was deposited on 15.07.2014, vide receipt Annexure C-8. At that time, assurance was given by the opposite party that possession of the plot will be delivered in the year 2015, as the Change of Land Use (CLU) already stood granted. Even on request made, Buyers Agreement was not offered for signing. In all, by 15.07.2014, the complainant had paid an amount of Rs.29,25,000/- i.e. equal to 65% of the price of the plot but its possession was not in sight. Personal visits made to the office of the opposite party and also project site, with a request to do the needful, failed to yield any result. In the meantime, the complainant came to know that the project was not approved by the Competent Authorities. Lay out plan shown was not sanctioned. The complainant also came to know about one notice dated 18.08.2012 published by GMADA, in the newspaper namely Hindustan Times wherein, the activities of the opposite party in selling the project, in question, without any sanction were noticed by the Competent Authorities, as a result whereof, the said sale was declared as illegal. It was stated that there is a clear-cut violation of the provisions of The Punjab Apartment and (PAPRA) and also terms and conditions of the Letter of Intent,Property Regulation Act, 1995 granted to the opposite party, on 03.05.2013 only. Fed up with the behaviour of the opposite party, the complainant sent legal notice dated 17.11.2016 Annexure C-10, requesting the opposite party to refund amount paid with interest. In response to the legal notice aforesaid, the opposite party, vide letter dated 25.11.2016 Annexure C-11, stated that the averments made in the legal notice were wrong. The complainant may visit the site, to choose the plot for allotment and thereafter, Buyers Agreement will be signed between the parties and the terms and conditions thereof, will govern the transaction, as referred to above. It was further stated in the said reply that if the complainant is insisting for refund, he may visit the office of the opposite party and sign the requisite documents. It is case of the complainant that even thereafter, on making approach to the opposite party, nothing was done. By alleging deficiency in providing service and adoption of unfair trade practice, on the part of the opposite party, the instant complaint has been filed by the complainant, wherein prayer has been made to issue directions to it, for refund of the amount paid, alongwith interest; compensation, for mental agony and physical harassment and cost of litigation. Upon notice, reply was filed by the opposite party, wherein, numerous objections were taken by it, like since complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature. Only Civil Court has jurisdiction to entertain and decide this complaint. It was asserted that the plot, in question, was purchased for future gain, as such, the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. Territorial jurisdiction of this Commission was also challenged. On merits, it was admitted that the plot was sold in favour of the complainant, in a project of the opposite party, known as Palm Garden aforesaid. It was stated that allotment of the plot, in question, was made on 04.02.2017. The complainant was also asked to come and sign the Buyers Agreement, however, he failed to do so. Even then, plot was allotted to him, vide letter mentioned above. To say that there was lot of development in the project, photographs were placed on record. It was stated that the project was approved on 22.03.2013 Formal agreement was signed with the Government on 14.06.2013. Thereafter, some more land was added to the project, for which completion period to develop was given upto 13.06.2018. It was stated that exemption from the applicability of provisions of the PAPRA already stood granted by the Government concerned, in favour of the opposite party on 25.01.2017. In view of above, all acts of the opposite party in getting money deposited against expression of interest, from the purchasers stood justified. The exemption granted will relate back to the date, when application was moved for sanction, to launch the project, in the year 2011. It was averred that withdrawal from the purchase is malafide and it is open to the opposite party to forfeit upto 20% of the amount paid. It was further stated that project was delayed on account of red-tapism in the offices of the Govt. Department concerned. It was also stated that delay in delivery of possession of plots occurred on account of shortage of building material, which could be termed as force majeure circumstances. It was averred that time was not the essence of contract. It was further stated that claim of the complainant granting interest @24% p.a. is totally unjustified. Even for fixed deposits, in the banks, rate of interest is very less. It was further stated that, as on today, the project stood approved by the Competent Authorities. It was averred that the project will be completed by 13.06.2018. It was stated that huge amount has been invested by the opposite party for getting necessary clearances and in developing the site in dispute. It was pleaded that the complaint is barred by time. It was stated that the complaint having no substance deserves dismissal. In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those contained in the written version of the opposite party. The parties led evidence, in support of their case. We have heard the contesting parties and, have gone through the evidence and record of the case, carefully. During proceedings, on 06.04.2017, following order was passed by this Commission As per office report, Counsel for the complainant had filed rejoinder accompanied by affidavit and documents, Annexures C-12 & C-13, in the office, on 03.04.2017. Copies of the same have already been supplied to the Counsel opposite. Para 7 of the rejoinder to the preliminary objections, filed reads thus:-
7. That the contents of Para 7 of the preliminary objections are wrong and denied. The opposite party has itself not placed on record any document from which it can be ascertain that on such and such date they have applied for CLU, LOI, other permissions and have deposited the requisite fee on such and such date. The opposite party should be directed to place on record various application for getting approval of LOI, CLU, environmental clearance, clearance from pollution board, layout/zoning plan and other permissions and the when and how the amount was paid towards various stages of the project i.e. LOI, CLU, development fund, cancer relief fund, EDC, fee paid for obtaining other sanctions and approvals. The opposite party should be directed to place on record the agreement entered into between in and government on 14.6.2013. The opposite party is trying to blame the government after the change of power in state of Punjab. If there was a delay then why the opposite party entered into supplementary agreement with the previous government and kept on expanding the project. It is stated by Sh. I. P. Singh, Advocate, Counsel for the Opposite Party that to rebut the averments made in above paragraph, he needs some time. On request, the matter is adjourned to 27.04.2017 for arguments. It is directed that to each and every averment made in the aforesaid paragraph, let reply be filed by the Opposite Party supported by documents. If evasive reply is filed, it will be taken as concealment of facts. It was case of the complainant that when the project was launched, none of the permissions were available with the opposite party and prayer was made that let those documents be placed on record. In response to above order dated 06.04.2017, the opposite party filed its reply, coupled with some documents. At page 8 of the reply, in a tabulated form it has been shown as to when necessary approvals were granted by the Competent Authorities, in respect of the project, in question. Perusal of contents of the said table makes it very clear that when the plot was sold to the complainant on 29.10.2011, none of the requisite permissions were available with the opposite party. The project was sold within about one and a half month, from the date of moving an application to get approval, to launch it (project). Orders granting necessary permissions were also placed on record. By making reference to above facts, it was stated by Counsel for the complainant, that in the Letter of Intent (LOI), which was issued on 03.05.2013, a specific condition was imposed upon the opposite party not to sell the project, except after getting necessary sanctions, under the PAPRA Act. Clause 6 of the said LOI reads thus:- This LOI is only a letter of intent issued by Punjab Urban Planning & Development Authority in its capacity as Nodal Agency and does not confer any right to the Promoter/Developer to sell/transfer the property or to execute any transactions with anyone without obtaining valid approvals & requisite notification/order under Section 44 of PAPR Act, 1995 to be issued by the Department of Housing & Urban Development. It was further mandated that as per Guidelines issued by the Government to launch mega project, which are available on record Annexure C-12 (at page 32), it is specifically laid down as under:- Conditions for grant of concessions:-5, The project shall not be advertised/launched and no money will be collected from general public for allotment of land/plot/flat/any space till such time the layout/zoning plans are cleared from the competent authority. It is mandated that the project can only be launched when layout/zoning plans are cleared from the Competent Authorities. It was also so said in the Letter of Intent for the Grant of Special Package of Incentives under Industrial Policy 2009, issued on 03.05.2013 in favour of the opposite party, by the Chief Administrator, PUDA, SAS Nagar, Mohali. It is necessary to mention here that the layout plan in respect of the project, in question, was cleared by the Government only on 06.10.2015 and the zoning plan was cleared only on 28.10.2015. This fact is admitted by the opposite party, in para no.7 of its reply, filed in response to order dated 06.04.2017. In view of above facts, it can be said that the opposite party thus, by selling the project in the year 2011, in the absence of permissions, adopted an unfair trade practice. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Perusal of almost all the documents, placed on record alongwith the complaint, clearly proves that the same have been issued by Chandigarh Office of the opposite party, as the same bear round stamp of the said office and also the address mentioned thereupon is Manohar Campus, SCO No.139-141, Sector 17-C, Chandigarh. Not only as above, even in the documents, which have been placed on record by the opposite party itself, pertaining to transaction of the plot, in question, reveal that the same have been issued by it, from its Chandigarh Office. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. There is no dispute that one plot was sold to the complainant in a project propagated and marketed by the opposite party, against sale consideration of Rs.45,50,000/-, on moving application dated 29.10.2011. On that date, an amount of Rs.13.50 lacs was received by the opposite party from the complainant, as booking amount. Further payment of Rs.9 lacs was made on 21.02.2014 and another amount of Rs.6,75,000/- was paid on 15.07.2014. When total amount paid equal to 65% of the sale consideration of the plot was received and also when first payment was received, the application to launch mega housing project was not approved, what to talk of taking CLU certificate and other permissions. Layout plan in respect of the project, in question, was approved on 06.10.2015 and the zoning plan was cleared only on 28.10.2015. Reading of the chart given at page 8 attached with the additional reply filed by the opposite party, clearly shows that by the time, when the project was launched, neither exemption from the provisions of PAPRA was available with the opposite party, nor any permission was available to sell the project. It is also averment of the complainant that the plot was publicized by issuing brochure Annexure C-1. Issuance of brochure has not been controverted by the opposite party. Be that as it may, contention of Counsel for the complainant that the project, in question, was sold without any permissions/sanctions from the Competent Authorities and also violating the provisions of section 6 of the PAPRA appears to be correct. The said provision reads thus:- 6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of ;1908) As stated above, the pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that permission seeking exemption from the applicability of provisions of PAPRA has finally been granted only in this year (2017), which cannot be said to have any retrospective effect. As such, it could very well be said that by selling the plots/units without exemption, the opposite party violated the provisions of PAPRA, and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on its part. Further, it is admitted in the written version that part of the project of the opposite party was approved much later, in the year March 2013. Formal Agreement was signed with the Govt. of Punjab on 14.06.2013. Thereafter, additional area was added and supplementary agreement was signed on 16.06.2016. Notification granting exemption from the applicability of the provisions of PAPRA was issued only on 25.01.2017. Perusal of the said notification makes it very clear that exemption given was conditional, as has been referred in para no.5 of the said notification. Besides other conditions, condition no.5 (iii to vii), reads thus:-
(iii). The promoter shall deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under section
32 of the Punjab Apartment and Property Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their layout plan.
(iv). The promoter shall acquire the ownership of project land in its name including land under agreement to develop and land under agreement to sell. The plots falling under land proposed to be acquired if any through Govt. acquisition, plot through which revenue rasta or khali passes shall not be developed and sold till these pockets are acquired and ownership is transferred in the name of the Promoter.
(v) The plots/land to which the access is proposed through the land to be acquired if any by the Government shall not be developed and sold till that land under the access is acquired and transferred in the name of the promoter and access is provided.
(vi) The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control Board.
(vii) Before starting the development of the proposed project promoter andshall obtain environmental clearance from the Ministry of Environment Forest Government of India as required under EIA notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution Control Board. It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting No Objection Certificate from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party. It was contended by Counsel for the opposite party that after issuance of notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega housing project, the irregularities committed by it qua sale of plots in the year 2011, etc. stands rectified. In para no.17 of its reply (at page 9), it was specifically stated by the opposite party that irregularity in accepting expression of interest for sale of the plot in the said project, will have no adverse effect. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. As stated above, when the project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed or admitted irregularities made, cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Sukhvinder Singh Hayer Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Complaint case no.775 of 2016 decided on wherein it was observed as under:-23.03.2017 (02 connected cases), It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting No Objection Certificate from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party. Contention of Counsel for the opposite party that notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the sale of plots in the year 2011 etc. stands rectified. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. When project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the Similar questionmonth of January 2017, violation committed cannot be rectified. qua this very project, came up for consideration before this Commission in Monika Vs. M/s Manohar Infrastructure and Construction Pvt. Limited, Complaint case wherein it was observed as under:-no.251 of 2016 decided on 27.09.2016, The pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that application seeking exemption from the applicability of provisions of PAPRA is still pending under consideration, with the Authorities concerned. Unless exemption is granted, its violation would amount to adoption of an unfair trade practice , which is glaring and vivid on the part of the opposite party, in this complaint. Qua a similar project launched by the opposite party in the same area, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi , under similar circumstances, this Commission, while dismissing the said appeal, has observed as under:- The documents placed on record clearly show that the project was launched without getting any permission from the Competent Authorities. Detailed brochure was issued showing facilities to be made available in the project launched and its layout plan. It is also on record that when it came to the notice of GMADA that the plots/flats are being sold unauthorizedly by the appellant, it gave a notice in the newspaper Hindustan Times dated 18.08.2012, which reads thus:- PUBLIC NOTICE This is for the information of one and all that it has come to the notice of the Competent Authority that one company named as M/s Manohar Singh & Co. is allegedly booking/selling plots in the Mullanpur- Siswan region near Chandigarh border in the State of Punjab. This is being intimated that the above said project is not approved by the State Government. The Competent Authority is initiating legal proceedings in this regard. If anybody has booked or purchased any plot in the locality mentioned above he/she is advised to contact the undersigned along with documentary proof for further legal action against the said promoter. Further, while buying any plot in any locality falling under the jurisdiction of GMADA, all are advised to visit the website to verify if the colony/project is approved or not. www.gmada.gov.in Chief Administrator GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA Bhawan, Sector 62, SAS Nagar . It is specifically stated in the notice dated 18.08.2012 that the appellant was allegedly booking/selling the plots in Mullanpur, near Chandigarh Border, in the State of Punjab, unauthorizedly. It was further stated that the project is not approved by the Competent Authority and it (Competent Authority) is initiating legal proceedings against the project proponent for its activity. Above said notice makes it very clear that when the plot was sold on 13.04.2012, the project was not approved by the Competent Authorities. It is also so reflected in the details given by the appellant with this appeal, which is available at page 33 of the paper book. Reading of above said document, makes it very clear that the project was approved by the Government on 25.04.2013; Letter of Intent (LOI) was issued on 03.05.2013; Change of Land Use (CLU) certificate was granted on 31.03.2014; project was registered on 21.06.2014; No Objection Certificate by the District Forest Officer, SAS Nagar, Mohali, was issued on 14.07.2014; Zoning plan was approved by the Chief Town Planner, Punjab on 24.11.2015 and Detailed Project Report (DPR)/Service Plans were approved by the Chief Engineer, GMADA, Mohali, on 27.11.2015. As per established law, if the project proponent sells the project without obtaining necessary permissions or clear title of the acquired land, it would amount to adopting unfair trade practice. It was so said by the Honble National Commission in Atul Maheshwari and ors. Vs. Yamuna Expressway Industrial Relevant portion of the saidDevelopment Authority, II (2016) CPJ 623 (NC). judgment reads thus:- OP should not have announced the scheme, until or unless they got clear title of the acquired land. Similar view was expressed by the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.756 of 2016, decided on 30.03.2016. In that case, when upholding the findings given by this Commission, that the project cannot be even marketed before getting approvals/sanctions, from the Competent Authorities, to launch it, it was observed by the National Commission, as under:- We are unable to persuade ourselves to agree with the ld. counsel. While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:- If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.
6. We are in complete agreement with the view taken by the State Commission. As noted above, the petitioners happen to be body corporate. Before offering the farmhouses in the said project as Agent of Respondent No. 2, they must be aware about the status of the sanction for launch of the project. Therefore, it is beyond ones comprehension that the present Petitioner was not aware about the actual state of affairs for which only the developer could be held responsible. In the present case also, there is nothing on record that when expression of interest/applications were invited to sell the said project, clear intimation was given to the -10- intending purchasers that the project sold was in infancy stage and it will take years together before necessary permissions will be granted by the Competent Authorities. It was vehemently contended by Counsel for the opposite party that once exemption from the applicability of the provisions of PAPRA stood granted in the year January 2017, it will relate back to the date of launching of the project, and all irregularities stands rectified. To support above said contention, he has placed reliance on the ratio of judgment passed by the Honble Supreme Court of India, titled as M/s Murudeshwara Ceramics Ltd. Vs. State of .Karnataka, 2002 (1) R.C.R. (Civil) 130 We are not going to accept the arguments raised. It has already been held in Sukhvinder that upon issuance of notification in the month of January 2017,Singh Hayer` case (supra) granting exemption from the applicability of the provisions of PAPRA, violation committed prior thereto, cannot be rectified. To so say, in reliance was alsoSukhvinder Singh Hayer` case (supra), placed upon the judgment passed by this Commission in The said findingMonika`s case (supra). was given in consonance with the findings of the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another`s case (supra). As far as the reliance placed by Counsel for the opposite party on M/s Murudeshwara is concerned, we have gone through the facts of the same very carefullyCeramics` case (supra) and found that the same were altogether different from the facts of the present case. In the case before the Honble Supreme Court of India, when interpreting the provisions of Section 109 of the Karnataka Land Reforms Act, 1961, it was stated that power of the Government to grant exemption with regard to the land, in any area from operation of some of the provisions of the Act, for using the said land for a particular purpose, are to be seen, not at the time of sale/purchase of the land in dispute, but at the time, when it was going to be put for the said use. It was noted that after sale of the land, in dispute, when it was going to be put for industrial use, exemption already stood granted. The position is altogether different; as in the present case, by indulging into selling the project without any sanctions in its hands, the opposite party has committed unfair trade practice, as defined in Section 2 (1) (c) (i) and (iii) of the CP Act. It is apparent on record that in the year 2011, activities of the opposite party in selling the project, without any sanction were noticed by the Competent Authorities and on 18.08.2012, as a result whereof, notice was published in a newspaper, stating that such sale was illegal. Copy of newspaper dated 18.08.2012, in which the said public notice was issued by the GMADA, is placed on record as Annexure C-9. Counsel for the opposite party by making reference to the contents of that notice reproduced in earlier part of this order, stated that the opposite party is named as M/s Manohar Infrastructure and Constructions Pvt. Ltd., whereas, the said notice was issued qua a project launched by a separate entity named M/s Manohar Singh & Co., which has nothing to do with the opposite party. Similar question fell for determination before this Commission in a case titled as Shaminder Walia and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, .Consumer Complaint No.918 of 2016, decided on 08.05.2017 (alongwith 05 connected cases) This Commission, while giving detailed findings, held as under:- We are surprised, how such a contention can be raised. It appears that when raising that contention, the Counsel has failed to look into the documents and photographs placed on record, when filing the written statement on behalf of the -11- opposite party. In the document Annexures C-1 and C-2, (admittedly issued by the opposite party) Logo of Manohar Singh & Co., has been used. The said logo appears as under:- The same logo is available on various other documents on record and even on those documents, which were placed on record by the opposite party itself. Not only as above, in photographs placed on record as Annexure O-6 colly., on the tower situated, just next to the site office of the opposite party, logo plus name of Manohar Singh & Co., is available. It shows as under:- Above facts clearly indicate that notice published was qua the activities of opposite party only. The opposite party is a group of Companies. As such, the objection raised by Counsel for the opposite party, stands rejected. -12- Further contention of Counsel for the complainant is that the amount was received without offering Buyers Agreement for signing and such an act would amount to an unfair trade practice. This fact is clearly admitted on record. The complainant was asked to sign the Agreement, only vide letter Annexure O-4 on 04.02.2017, when many complainants like the present one, started filing complaints against the opposite party. As per the provisions of section 6 of the PAPRA, it is incumbent for the project proponent to execute Buyers Agreement on accepting application for purchase of plots/units etc., within a reasonable time say about two to three months. By not offering Buyers Agreement, for signing within reasonable time, the opposite party committed unfair trade practice and is also deficient in providing service. It was also so held by this Commission in asMonika`s case (supra) under:- Furthermore, it is apparent on record that the Buyers Agreement was not presented for signing. As per the provisions of section 6 of the PAPRA, it is incumbent for the project proponent to execute Buyers Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three month. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 . Relevant portion of the said case, reads thus:-of 2016, decided on 02.06.2016 T he opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyers Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyers Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyers Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected. As such, in the present case, by not offering Buyers Agreement, for signing in a reasonable time, the opposite party committed unfair trade practice and is also deficient in providing service. In the present case, an attempt has also been made to by-pass the above provision by showing the sale as an expression of interest to purchase a plot. It has been so said before this Commission, at the time of arguments also, by Counsel for the opposite party that sale of the plot has not yet been confirmed, as such, there was no need to get the Buyers Agreement executed. It may be stated here that it was an outright sale, when first payment was accepted by the opposite party, vide cheque dated 29.10.2011. Thereafter also, the amount was received by the opposite party and in all, it has received substantial amount of Rs.29,25,000/-. Above said contention raised by the opposite party, qua similar project, in the same area, was rejected by this Commission, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. wherein it was observed as under:-Sh.Tilak Raj Bakshi, -13- Furthermore, as is evident from the documents on record, the appellant is also guilty of violation of Section 6 of the Punjab Apartment and Property Regulation Act, 1995, (in short the PAPRA Act). In a very deceptive manner, an attempt has been made to show actual sale of plot, as an expression of interest. As has been held in earlier part of this order, vide document Annexure C-2, the terms and conditions of sale settled to make payment was also made available. Once it is so, by not offering the Buyers Agreement for signing in a reasonable time, say two to three months but on the other hand, after a lapse of many years of the sale of plot, the appellant has committed an unfair trade practice. It is evident from the facts mentioned above that when the project in question was sold, neither CLU nor any other permission was available with the opposite party. The Agreement was entered into with the Govt. only on 14.06.2013, to launch this project and that too, subject to many conditions. Facts clearly indicate that the opposite party was guilty of launching a project against mandate of law. In view of above contention of Counsel for the opposite party that the complainant waived of his right to raise any objection because it was known to him that the project has still not been approved, however, he opted to purchase, is liable to be rejected. Another plea was taken by the opposite party, in its written version, to the effect that delay in delivery of possession of the plot was caused on account of ban on building material and as such sand, gravels etc., remained short to an extent, meaning thereby that it had encountered force majeure circumstances. It may be stated here that as regards the alleged shortage of construction material like sand etc. in the market, nothing has been placed on record, by the opposite party, to prove that it was unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite party having invited tenders for supply of construction material and there being no response to such tenders. A similar plea for delay in delivery of possession of the units, was taken by a builder, before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited , which was rejected and the(along three connected complaints), decided on 14 Aug 2015 complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to be present case. In the present case also, the opposite party failed to convince this Commission, that it actually encountered force majeure circumstances, as a result whereof, delay in handing over possession of the plot occurred. As such, the stand taken by the opposite party, in this regard, is rejected. It was vehemently contended by Counsel for the opposite party by making reference to the documents placed on record, when filing additional reply that for delay in the project, the then Government was responsible, and it was done on account on political rivalry. Similar argument came up for consideration, before this Commission, in Shaminder Walia`s case ) and it was observed as under:-(supra At time of arguments, it was vehemently contended by Counsel for the opposite party that application to get mega project approved, was filed in the year 2011. Delay occurred on account of laxity on the part of the bureaucrats and further it -14- was deliberately done, because of rivalry existing between the political party in power and the Managing Directors of the Company. Such a plea has been taken just to raise it without any material on record. It may be stated here that the application to get necessary permissions, was moved in the year 2011, what happened thereafter; whether any objection was raised; whether at any point of time, it was taken up with the Authorities concerned, to give permission(s), within three months, as per Rules or not, has not been made clear. There is nothing on record, whether any Officer(s) of the Management of this Company was/were the member(s) of any political party; they ever contested any election; and whether question of rivalry causing delay on account of political reasons was ever taken up before the Competent Fora/Court of Law. It is on record that to get necessary permission qua the land in the project, applications were moved in parts. The opposite party continued to purchase land and continued moving applications, to the Competent Authorities. In this view of the matter, the plea taken by the opposite party, stand rejected. At the time of arguments, we specifically asked Counsel for the opposite party, to show, whether after submitting application for approvals to the mega project, when it was being delayed, the opposite party sent any communication to the concerned authority, to expedite the grant of permission, he failed to indicate any such communication on record. It appears that objections have been taken, only to gain sympathy and nothing else, which deserve rejection. It was further vehemently contended by Counsel for the opposite party that the complainant would not fall within the definition of a consumer, as he has invested in the plot, only with a view to generate profits, in future. It was specifically stated by Counsel that mother of the complainant has also purchased one plot, in the said project, through a third party. She also filed a complaint to refund the amount paid, by her. Above fact clearly indicates that both of them were not genuine investors. We are not going to accept this argument. It has specifically been stated by the complainant that he has purchased the plot, in question, for his residential purposes. If his mother has purchased a property, in the project of the opposite party, it cannot be said that the complainant is an investor. Mother in her own rights, can purchase a property for her residential purpose. Even otherwise, there is nothing on the record that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite party has levelled allegations against the complainant, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate , by the National Consumer Disputes Redressal Commission,Developer Pvt. Ltd. 2016 (1) CPJ 31 New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 . Not only as above, recently under similar circumstances, in a case titled as (2) CPJ 316 Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:- -15- In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a consumer, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected. It is an admitted fact that the opposite party is unable to deliver possession of the developed plot, in question, for want of development/construction, basic amenities etc. and still firm date of delivery of possession of the plot, could not be given to the complainant. It was only stated that the opposite party is making efforts to deliver possession of the plot, in question. Even the photographs placed on record by the opposite party itself reveal that still it will take a long time for completing the development work. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by him. The opposite party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the plot. Under these circumstances, it can be said that there is a material violation in providing service, on the part of the opposite party. It is a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage (in the present case possession not offered) and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of wherein, under similar circumstances, while negating the2015, decided on 14 Sep 2016, plea taken by the builder, it was held as under:- I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest. -16- Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech , wherein possession wasLimited, Consumer Complaint No. 59 of 2016, decided on 24.05.2016 offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:- Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First the National Commission, under similarAppeal No.1028 of 2015, decided on 19.04.2016, circumstances, held as under:- I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery. In the present case, plot was booked in the year 2011 and now it is May 2017. The opposite party has already taken more than 6 years and as such, it cannot make the complainant to wait for entirety, while raising bald ground that time is not the essence of contract. The complainant is, thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that amount aforesaid, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite party, for its own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in , (2014) 6 SCC 335 decided on March 20th,UOI vs. Tata Chemicals Ltd (Supreme Court) In view of above, the complainant is certainly entitled to get2014 (2014) 6 SCC 335). refund of the amount to be ordered by this Commission, alongwith interest on the deposited amount, from the respective dates of payments actually made by him. As far as the plea raised by Counsel for the opposite party, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not its (opposite party) case, that it was ready with possession of the plot, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind from the allotment of plot, on account of some unavoidable circumstances/financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite party, only in those circumstances, it would have been held that the complainant is entitled to the amount deposited, after deduction of the earnest money, as per law. Otherwise also, since in the present case, Agreement was not got executed by the -17-
iii. opposite party, as such, no terms and conditions, whatsoever, were applicable to the complainant. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected. At the same time, it is also held that no complicated question of facts and law are involved in this case. It is a simple case of non-delivery of possession of the plot(s)/unit(s) purchased by the complainant, in the project of the opposite party. There is ample evidence on record, which proves that opposite party was deficient in providing service and also adopted unfair trade practice. This Commission is, therefore, competent to adjudicate the present complaint. Plea taken by the opposite party, in this regard, as such, stands rejected. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here that since it has been proved on record that offer of possession of the plot, in question, could not be made till date for want of development and basic amenities, and also the fact that allotment of the plot was made only on 04.02.2017 and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in his favour, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut . Under theseDevelopment Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected. No other point, was urged, by Counsel for the parties. For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:- To refund the amount Rs.29,25,000/- to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @13%, from the respective dates of deposits onwards, and interest @13% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization. However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant). Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion Pronounced. 23.05.2017 Sd/- -18- [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Sd/- (PADMA PANDEY) MEMBER -19-