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Smart Summary

Summary of Opinion — State Consumer Disputes Redressal Commission, Punjab, Chandigarh (14 May 2019)

Factual and Procedural Background

This consolidated opinion disposes of three consumer complaints — Consumer Complaint Nos. 566, 567 and 568 of 2018 — all instituted on 13.07.2018 and decided on 14.05.2019 by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (Quorum: Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President; Mrs. Kiran Sibal, Member).

Complainants (in the three matters) are Inderjit Singh (through authorised agent Sh. Virpal Singh), Parampal Kaur (through authorised agent Sh. Virpal Singh) and Surinder Kaur (through authorised agent Sh. Virpal Singh). Opposite parties across the complaints include Chandigarh Overseas Private Limited and several individuals (named in the opinion), including a director.

Broadly, each complainant alleges booking and full or partial payment for an independent flat in the "Fashion Technology Park, Sector 90, S.A.S. Nagar, Mohali" project; possession was contractually due on 01.01.2012. The complainants allege non-delivery of possession (project remained incomplete), representations to the developer were ignored, and refund/compensation and interest are due. Reliefs sought included refund of the sale consideration (varying by complainant), contractual delay charges (Rs.1,000 per day as per Clause 14), compensation for mental agony, and litigation expenses.

Procedurally, opposite parties Nos.1 & 5 appeared and filed joint replies and affidavits; opposite parties Nos.2–4 failed to appear and were proceeded against ex parte. The Commission heard submissions and considered documentary evidence filed by the parties.

Legal Issues Presented

  1. Whether the complaints were barred by limitation or whether there is a continuous cause of action such that the complaints are within limitation.
  2. Whether the complaints are maintainable when filed through an authorised agent (power of attorney).
  3. Whether the opposite parties committed deficiency in service / unfair trade practice by failing to deliver possession and by misrepresentation regarding development and compliance with statutory requirements.
  4. Whether force majeure circumstances, court/tribunal stays or other procedural impediments excused the delay in delivery of possession.
  5. What remedies are appropriate (refund, rate of interest, compensation, litigation expenses, and whether contractual delay charges of Rs.1,000/day are payable in the circumstances).

Arguments of the Parties

Complainants' Arguments

  • The opposite parties failed to deliver possession of the booked flats within the contractual period despite receipt of full (or claimed) sale consideration.
  • The project remained unconstructed (photos produced) and representations to the developer did not produce results; legal notice remained unanswered.
  • Opposite parties' conduct amounts to deficiency in service and unfair trade practice; complainants are entitled to refund, interest, compensation and litigation expenses.
  • Proceedings by authorised agent are proper (complainants were not well/able to appear personally) and documents support the claims.

Opposite Parties' Arguments (Nos. 1 & 5)

  • Preliminary objections: the complaints involve complicated questions of fact and law requiring detailed evidence and cross-examination; the Commission lacks jurisdiction to decide summarily.
  • Limitation: agreement executed in 2011 and possession due 01.01.2012; limitation period expired (argued as January 2014) and complaints filed in 2018 are time barred.
  • Maintainability: complaints filed by an authorised representative / power of attorney are not maintainable (or improper).
  • Force majeure and third-party demands / disputes: project delay caused by force majeure, demands raised by GMADA (licence fees / external development charges) and disputes with contractors; certain statutory exemptions were relied upon (industrial policy notifications and partial exemption from PAPRA).
  • Court orders/stays: invoked interim orders / arbitration / writ proceedings (including status quo) which affected project activity and justified delay; proffered readiness to refund amounts with 6% interest instead of completing at original price due to escalated costs.
  • Relied on earlier decision: State Commission, U.T., Chandigarh in Consumer Case No.143 of 2016 (Sanjay Dhiman v. Chandigarh Overseas Private Limited) to argue non-entitlement for compensation where an interim stay had been in operation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr., 2016(2) CLT 457 Establishes that where possession of flats has not been delivered, the cause of action is continuous and limitation does not run so as to bar consumer complaints seeking possession/refund. The Commission relied on this authority to hold that the complainant had a continuous cause of action until possession was delivered or amount refunded, and therefore the complaints were within limitation.
Raghava Estates Ltd. v. Consumer Complaint No.227 of 2018 21 Vishnupuram Colony Welfare Association Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012 Support for the proposition that cause of action continues where possession has not been delivered. The Commission cited this authority as supportive of the continuous cause of action principle and used it together with Navin Sharma to reject the limitation objection.
State Consumer Disputes Redressal Commission, U.T., Chandigarh — Consumer Case No.143 of 2016 (Sanjay Dhiman v. Chandigarh Overseas Private Limited) (order dated 16.08.2016) Illustrates that when an interim stay on construction was in operation (from 26.04.2011 to 23.08.2014), complainant may not be entitled to compensation for that period. The Commission distinguished this decision: unlike that case, the opposite parties in the instant matters failed to prove that any stay operated for the relevant period, so the ratio was not attracted here.
Rupinder Kaur & Ors. v. State of Punjab & Ors. (Writ Petition No.4856 of 2014 referenced in the record) Refers to a writ petition in which an order for status quo was passed (as per the opposite parties' pleadings). The Commission noted the existence of such litigation in the opposite parties' narrative, but observed that the opposite parties did not produce evidence to show that any stay operated for the period claimed; the Commission did not accept the writ-based stay defence in the absence of proof.

Court's Reasoning and Analysis

The Commission addressed objections and merits in a stepwise manner.

  1. Jurisdiction and Procedural Position: The Commission observed that complaints were filed under Section 17 of the Consumer Protection Act, 1986 and were properly before it. Opposite parties Nos.2–4 who failed to file replies were proceeded against ex parte; their averments in the complaint were thus deemed admitted for evidentiary purposes.
  2. Limitation/Continuous Cause of Action: The Commission accepted settled authority (Navin Sharma and Raghava Estates Ltd. as cited) establishing that when possession has not been delivered, the cause of action remains continuing and a complaint for refund/possession/compensation is not time-barred merely because contractual delivery date has passed. Applying that principle the Commission held the complaints were within limitation.
  3. Maintainability of Proceedings through Power of Attorney: The Commission held that a power of attorney may file the complaint; proceedings under the Act are summary and primarily document-driven; the General Power of Attorney (Ex.C-9) was on record and the documentary evidence was not denied by the opposite parties. Accordingly, the objection to maintainability on this ground was rejected.
  4. Merits — Non-delivery of Possession and Evidence: The Commission found that the complainants produced documents and photographs (Ex.C-4 etc.) showing the project remained unfinished and in semi-constructed condition. The opposite parties admitted allotment and receipt of sale consideration (in the 566 and 568 matters; in 567 the complainant could produce receipts for Rs.25,00,000 only and the Commission accepted that as the deposited amount in absence of proof to the contrary).
  5. Force Majeure / Stays / Other Defences: Although the opposite parties plead force majeure, contractual exemptions and intervening litigation (arbitration and writs), the Commission observed that the opposite parties did not produce documentary evidence sufficient to prove that force majeure or operative stays excused their failure to perform. Where they produced certain orders/annexures, they did not follow procedure to tender those as additional evidence; in any event the specific stay for the alleged period was not evidenced. The Commission therefore did not accept the force majeure / stay defence.
  6. Statutory Compliance (PAPRA and Rules): The Commission examined statutory duties under the Punjab Apartment and Property Regulation Act, 1995 (PAPRA) and Rules framed thereunder. It found the opposite parties failed to produce evidence of permissions required under Section 5 (development permission), disclosures required under Section 3 (title and encumbrances), and maintenance of a separate bank account as required by Section 9. Opposite parties relied on a notification of 04.02.2005 purporting to exempt the project from PAPRA except Section 32, but the Commission noted absence of proof that terms/conditions of that exemption were complied with; consequently the Commission concluded the opposite parties violated relevant provisions.
  7. Remedies and Rate of Interest: The Commission invoked Rule 17 of the PAPRA Rules (which provides for refund of advance with interest at 12% p.a. from date of receipt) and the broader consumer protection mandate (benevolent statute aimed to protect consumers). Given there was no default by complainants in payment, and fault lay with opposite parties in not completing the project, the Commission concluded complainants were entitled to refund of amounts deposited with interest at 12% per annum from respective dates of deposit till realisation, and reasonable compensation for mental agony and litigation expenses.
  8. Contractual Delay Charges (Rs.1,000/day under Clause 14): The Commission noted that the contractual clause provided delay charges where possession is sought but delayed. However, since the complainants sought refund (and not possession), those contractual delay charges could not be awarded in the circumstances.
  9. Distinguishing Precedent: The Commission distinguished the Sanjay Dhiman decision relied upon by opposite parties because, in that precedent, a documented interim stay existed from 26.04.2011 to 23.08.2014 and that formed the basis for denying compensation for that period; in the present matters, no comparable stay was proved by the opposite parties for the claimed period, so that precedent's ratio did not apply.

Holding and Implications

Holding (core ruling):

For Consumer Complaint No.566 of 2018: The complaint is allowed. The Commission directed refund of Rs.37,00,000 to the complainant with interest at the rate of 12% per annum from respective dates of deposit till realisation, and ordered payment of Rs.50,000 as compensation for mental agony and harassment (including litigation expenses).

For Consumer Complaint No.567 of 2018: The complaint is partly allowed. The Commission found on the record that the complainant had proved deposit of only Rs.25,00,000; consequently it directed refund of Rs.25,00,000 with interest at 12% per annum from respective dates of deposit till realisation, and ordered payment of Rs.38,000 as compensation for mental agony and harassment (including litigation expenses).

For Consumer Complaint No.568 of 2018: The complaint is allowed. The Commission directed refund of Rs.37,00,000 with interest at 12% per annum from respective dates of deposit till realisation, and ordered payment of Rs.50,000 as compensation for mental agony and harassment (including litigation expenses).

Additional directions: The orders in each complaint were to be complied with by the opposite parties within 30 days of receipt of certified copies of the Commission's orders.

Implications

Direct consequences on the parties: the opposite parties are required to refund specified amounts to each complainant with interest at 12% p.a. and pay the stated compensation amounts, within 30 days. The Commission rejected the opposite parties' limitation and maintainability objections, and declined to accept unproven force majeure or stay defences in the absence of documentary proof.

Broader implications or precedent: The opinion applies established authorities on the concept of continuous cause of action where possession has not been delivered, and reiterates the consumer protection and PAPRA-related obligations of promoters/developers. The Commission did not indicate that it was laying down any novel legal principle beyond application of existing authorities and statutory provisions.

Opinion authored by: Justice Paramjeet Singh Dhaliwal, President (with Member Kiran Sibal). Date of order: 14 May 2019.

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    Inderjit Singh v. Chandigarh Overseas Pvt. Ltd.

    STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

    1) Consumer Complaint No.566 of 2018 Date of institution : 13.07.2018 Date of decision : 14.05.2019 Inderjit Singh S/o Sh. Gurbachan Singh, House No.613, Gillco Valley, Sector 127, Kharar Road, S.A.S. Nagar, Mohali, through his Authorized Agent Sh. Virpal Singh S/o Sh. Jagroop Singh, Resident of House No.854, Sector 48-A, Chandigarh. .Complainant Versus

    1. Chandigarh Overseas Private Limited, S.C.O. 249, Basement Sector 44-C, Chandigarh or Jade Business Park, Sector-90, Mohali.

    2. Gursharan Batra, House No.1074, M.D.C., Sector-4, Panchkula.

    3. Samesh Chawla, House No.1492, Sector 40-B, Chandigarh.

    4. Hardyal Singh Mann, House No.H.M.2, Phase-1, Mohali.

    5. Tajinder Pal Singh, Director of Chandigarh Overseas Private Limited, Chandigarh Overseas Private Ltd., S.C.O. 249, Basement, Sector 44-C, Chandigarh. .Opposite Parties

    2) Consumer Complaint No.567 of 2018 Date of institution : 13.07.2018 Date of decision : 14.05.2019 Parampal Kaur W/o Sh. Rajinder Singh, R/o Village Shermajra, P.O. Sullar, District Patiala, through her Authorized Agent Sh. Virpal Singh S/o Sh. Jagroop Singh, Resident of House No.854, Sector 48-A, Chandigarh. .Complainant Versus

    1. Chandigarh Overseas Private Limited, S.C.O. 249, Basement Sector 44-C, Chandigarh or Jade Business Park, Sector-90, Mohali. Consumer Complaint No.566 of 2018

    2. Gursharan Batra, House No.1074, M.D.C., Sector-4, Panchkula.

    3. Samesh Chawla, House No.1492, Sector 40-B, Chandigarh.

    4. Hardyal Singh Mann, House No.H.M.2, Phase-1, Mohali.

    5. Tajinder Pal Singh, Director of Chandigarh Overseas Private Limited, Chandigarh Overseas Private Ltd., S.C.O. 249, Basement, Sector 44-C, Chandigarh. .Opposite Parties

    3) Consumer Complaint No.568 of 2018 Date of institution : 13.07.2018 Date of decision : 14.05.2019 Surinder Kaur W/o Sh. Inderjit Singh, House No.613, Gillco Valley, Sector 127, Kharar Road, S.A.S. Nagar, Mohali, through his Authorized Agent Sh. Virpal Singh S/o Sh. Jagroop Singh, Resident of House No.854, Sector 48-A, Chandigarh. .Complainant Versus

    1. Chandigarh Overseas Private Limited, S.C.O. 249, Basement Sector 44-C, Chandigarh or Jade Business Park, Sector-90, Mohali.

    2. Gursharan Batra, House No.1074, M.D.C., Sector-4, Panchkula.

    3. Samesh Chawla, House No.1492, Sector 40-B, Chandigarh.

    4. Hardyal Singh Mann, House No.H.M.2, Phase-1, Mohali.

    5. Tajinder Pal Singh, Director of Chandigarh Overseas Private Limited, Chandigarh Overseas Private Ltd., S.C.O. 249, Basement, Sector 44-C, Chandigarh. .Opposite Parties Consumer Complaints under Section 17 of the Consumer Protection Act, 1986. Consumer Complaint No.566 of 2018 Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member. Present:- For the complainant : Sh. Karan Jindal, Advocate For OPs No.1 & 5 : Ms. Sehar Navjeet Singh, Advocate For OPs No.2 to 4 : Ex parte. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT : This order will dispose of above mentioned three (3) Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, the Act), as the facts and the questions of law involved in all these complaints are similar and all the complaints have been filed against the same opposite parties by the different complainant(s). The facts are taken from Consumer Complaint No.566 of 2018. Consumer Complaint No.566 of 2018 The complainant has filed this complaint, under Section 17 of the Act, through his Authorized Agent Sh. Virpal Singh, against the opposite parties, seeking following directions to them:

    a) to make payment of 37,00,000/- (principal amount);

    b) to make payment of interest/delay charges at the rate of 1,000/- per day from 01.01.2012, as per Clause 14 of the agreement; Consumer Complaint No.566 of 2018

    c) to pay compensation of 5,00,000/- on account of mental agony and harassment suffered by the complainant; and

    d) to pay 1,00,000/- towards litigation expenses.

    e) It has also been prayed that any other relief, which may be deemed fit and proper, be also granted. Facts of the Complaint

    2. Brief facts, as set out in the complaint, are that the complainant is not medically well and he cannot travel much and, as such, he has filed this complaint through his above named Authorized Representative. It has been averred that the complainant booked an independent flat, measuring 2075 sq.ft. on 3rd floor in the project of the opposite parties namely Fashion Technology Park, Sector 90, S.A.S. Nagar, Mohali, for a total sale consideration of 37,00,000/-, for his personal use as well as for use of his family. The complainant made full payment to the opposite parties towards the price thereof. Flat Buyers Agreement (agreement) was signed between the parties on 11.01.2011 and Provisional Allotment Letter was issued to him on 15.11.2011. As per Clause 14 of the agreement, the possession of the said flat was to be delivered on 01.01.2012; failing which the opposite parties were liable to pay 1,000/- per day to the complainant. However, the opposite parties failed to deliver possession of the flat to the complainant within the stipulated period and not even a single brick Consumer Complaint No.566 of 2018 was laid by them for raising construction. The complainant sent representations dated 25.05.2015 and 21.11.2016 to the opposite parties, requesting them to deliver possession, but to no effect. Only false assurance to refund the amount was given by opposite party No.5, without doing the needful. In November, 2016, the opposite parties clearly refused to refund the amount deposited by the complainant. Thus, the complainant got served legal notice, Ex.C-7, upon them, but no reply thereto was received. The aforesaid act and conduct of the opposite parties amount to deficiency in service. Hence, the present complaint. Defence of the Opposite Parties

    3. Upon notice, opposite parties No.1 & 5 appeared and filed their joint reply to the complaint, whereas opposite party No.2 did not appear despite his service and, as such, he was proceeded against ex parte, vide order dated 12.09.2018. Initially, opposite parties No.3 & 4 could not be served by way of notice sent through registered post and, as such, their service was effected through Publication in the newspaper The Times of India, but as they failed to appear, so they were also proceeded against ex parte, vide order dated 26.03.2019.

    4. Opposite parties No.1 & 5, in their reply, raised preliminary objections that complicated questions of facts and law are involved in the complaint, which require detailed evidence and cross-examination Consumer Complaint No.566 of 2018 and, thus, this Commission has no jurisdiction to entertain and decide the complaint. The complaint is time barred, as the agreement was executed on 11.01.2011 and the possession was to be delivered by 01.01.2012. Thus, the limitation period already expired in January, 2014 and the complaint has been filed in the end of the year 2018. The complaint is not maintainable, being filed by the authorized representative/power of attorney, who has nothing to do with the present dispute. The project of the opposite parties has been hit by force majeure circumstances, beyond their control. The State of Punjab, vide Notification dated 26.03.2003, notified an industrial policy, in pursuance of which opposite party No.1-Company submitted a proposal to the Government of Punjab for setting up of a Techno Knowledge Park for Fashion Technology in Mohali, with permission to use 60% of the area for industrial spaces/design studios/offices, 30% for residential purpose and 10% for commercial purpose (with regard to piece and parcel of land bearing Hadbast No.35 and 36 of village Sohana and Lakhanpur, Sector 90, Mohali, total measuring 13.76 acres equivalent to 66598.40 sq.yds. i.e. 55618.50 sq.mts.). The Government of Punjab granted Eligibility Certificate to the opposite party No.1-Company, vide letter dated 18.01.2005, under Clause 10.4 of the Industrial Policy, 2003. Vide Notification dated 04.02.2005, the Company was granted Change of Land Use from agricultural to Consumer Complaint No.566 of 2018 industrial use of the said land. Vide another Notification of the same date, the Company was exempted from all provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), except Section 32 thereof. It was also exempted from compulsory acquisition under the Land Acquisition Act, 1894. The Building Lay Out plan was sanctioned, vide letter dated 13.04.2006, by the Chief Town Planner, Government of Punjab. The Company started construction of the project and it was asked to deposit Urban Development Fund of 20,715/- and Licence Fee of 13,74,375/- by the Chief Town Planning, Punjab Civil Secretariat, Chandigarh; which was paid but had to be refunded by GMADA on 10.08.2010, because the said demand was illegal. The opposite parties had given the contract for construction of the project to M/s Start Construction. GMADA raised a demand of 2,87,69,475/- as licence fee on account of External Development and Change of Land Use. However, the said demand was totally uncalled for; as the project, in question, was exempted from such fee as per Notification dated 04.02.2005. However, due to non- payment of said demand, no further clearances were awarded to the project. Opposite party No.1-Company submitted a representation against the said demand, but the work for residential tower continued. A Buyer Developer Agreement was executed between the Company and the respondent for sale of one flat, which stipulated that a Consumer Complaint No.566 of 2018 provisional allotment letter would be issued, subject to the directions, rules, provisions and terms and conditions laid down in the Industrial Policy, 2003, approval letters and rules and regulations so far or to be framed in future by the Department of Industry and Commerce, Government of Punjab. However, M/s Star Constructions left the work in between and, as such, the opposite parties searched for a new contractor and they entered into a Joint Development Agreement (JDA) with M/s Ionic Realty Ltd. to develop the property, as per the terms and conditions, as agreed by the parties therein. M/s Ionic Realty Ltd. filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 before the Additional District Judge, Chandigarh against opposite party No.1-Company, seeking grant of interim measures of protection for restraining the Company from causing any kind of obstruction/hindrance to development activities by Ionic Realty Ltd. on the subject properties and further restraining the Company from entering into any contract with third party or creating third party rights with regard to subject property. Additional District Judge, Chandigarh granted status quo order against opposite party No.1-Company. By then, the structure of residential complex had been completed and the work left was of 10-12 months and the project came to standstill. The Company submitted a revised layout/building plan to the Chief Town Planner. GMADA, vide its letter dated 31.10.2012, informing the Consumer Complaint No.566 of 2018 Company that the application for issuance of NOC for the sanction of revised plan would be considered only after the Company would deposit 2,69,73,475/- as licence fee and 9,04,316/- as social infrastructure fund, which was completely a new demand. GMADA issued another letter giving break-up for the demand of 2,87,69,475/- and demanded the same. The opposite parties filed Writ Petition bearing No.5536 of 2013 against GMADA before the Honble Punjab and Haryana High Court; which was allowed and the aforesaid demands raised by GMADA were quashed. Another Civil Writ Petition No.4856 of 2014 titled as Rupinder Kaur & Ors. v. State of Punjab & Ors. was also filed before the Honble Punjab and Haryana High Court, wherein order for status quo was passed with respect to the subject land of the Company. The construction cost, since the execution of agreement till the force majeure circumstances were removed, has gone skyrocketing and it is impossible for the answering opposite parties to deliver possession of the unit, being commercial in nature, to the complainant or other similarly situated persons at the same price. Thus, they are ready to refund the amount deposited by the complainant with 6% interest. No representations, as alleged in the complaint, were ever received by opposite party No.1. On merits, allotment of the flat, in question, in favour of the complainant and payment of full sale consideration by him was admitted. It was pleaded Consumer Complaint No.566 of 2018 that delay in the project is due to the force majeure conditions, explained in detail above. No legal notice was ever received. Similar other pleas, as raised in the preliminary objections, were reiterated and denying all other allegations levelled in the complaint, dismissal thereof, with exemplary costs, was prayed. Evidence of the Complainant

    5. To prove his claim, the complainant, along with the complaint filed affidavit of his Authorized Signatory, Sh. Virpal Singh and documents Ex.C-1 to Ex.C-9.

    6. Opposite parties No.1 & 5, along with their reply, filed affidavit of opposite party No.5 and documents Annexure OP-1 and Annexure OP-2. Contentions of the Parties

    7. We have heard learned counsel for the complainant and opposite parties No.1 & 5 and have also gone through the record carefully. We have also perused the written arguments submitted on behalf of opposite parties No.1 & 5.

    8. Learned counsel for the complainant has vehemently contended that the opposite parties failed to develop the project and to deliver possession of the flat, in question, to the complainant within the stipulated period as per terms and conditions of its scheme, despite receipt of entire sale consideration. The complainant so many times Consumer Complaint No.566 of 2018 requested the opposite parties to deliver possession of the flat, but to no effect. They kept on utilizing the amount deposited by the complainant for their own use, without bothering to complete the project and to deliver possession of the flat to the complainant. This act and conduct of the opposite parties amount to deficiency in service and unfair trade practice and, as such, the complainant is entitled to all the reliefs, as prayed for in the complaint.

    9. In the written arguments submitted on behalf of opposite parties No.1 & 5, pleadings of the reply filed by them were reiterated. It has been further contended by the learned counsel for opposite parties No.1 & 5 that complaint is time barred, as the agreement was executed on 11.01.2011 and the possession was to be delivered by 01.01.2012. The limitation period already expired in January, 2014, whereas the complaint has been filed in the end of the year 2018. It has been further contended that the complaint is not maintainable, being filed by the authorized representative/power of attorney. It has been further contended that the project of the opposite parties has been hit by force majeure circumstances, as detailed in the reply, which were beyond their control; as a result of which the project got delayed. It has been contended that the project ran into dispute and on a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 by M/s Future Colonizers and Constructions Pvt. Ltd., a stay was granted on Consumer Complaint No.566 of 2018 26.04.2011 which was lasted till 23.08.2014. Further, the project was again stayed, vide order dated 14.03.2014 by the Honble Punjab and Haryana High Court in CWP No.4856 of 2014. Copies of said orders are annexed as Annexure OP-3 (colly.). Due to delay in completion of project, the prices have gone skyrocketing and it is impossible for opposite parties to deliver possession of the unit at the same price and they are ready to refund the amount deposited by the complainant with 6% interest. Thus, there is no deficiency in service on the part of opposite parties No.1 & 5 and the complaint against them is liable to be dismissed. In support of his contentions, learned counsel for opposite parties No.1 & 5 placed reliance on the order dated 16.08.2016 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh in Consumer Case No.143 of 2016 (Sanjay Dhiman v. Chandigarh Overseas Private Limited). Consideration of Contentions

    10. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the contesting parties.

    11. Opposite parties No.1 & 5 took the objection that the complaint is time barred, on the ground that the complainants entered into Buyer Developer Agreement in the year 2011 and the present complaint has been filed in 2018 i.e. after about 7 years. Admittedly the Consumer Complaint No.566 of 2018 complainant made the payment of full price of the unit, in question, to the opposite parties. As per Clause-14 of the agreement, the project was to be completed by 01.01.2012, but the possession of the same has not been delivered by them till date. It is now well settled that in such cases there is a continuous cause of action till the possession is delivered or the amount is refunded along with interest, compensation and costs etc. Honble National Commission in Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr. 2016(2) CLT

    457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Honble National Commission as under:-

    8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in Raghava Estates Ltd.

    v. Consumer Complaint No.227 of 2018 21 Vishnupuram Colony Welfare Association Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012. Since neither possession has been delivered nor the amount deposited by the complainant has been refunded till date and, as such, in view of Consumer Complaint No.566 of 2018 the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainant is within limitation.

    12. So far as the other objection raised by opposite parties No.1 & 5 that the complaint is not maintainable, being filed by the authorized representative/power of attorney, is concerned, it is relevant to mention that it has been well settled that the power of attorney can always file the complaint. So far as the deposition made by the power of attorney is concerned, it is pertinent to mention that the proceedings under the Act are summary in nature, in which basically the decision is based on the documents, which are annexed/produced by the parties in support of their respective pleas. The affidavit is filed only to support the averments, which are taken into consideration. Moreover, the General Power of Attorney, Ex.C-9, has been duly executed by the complainant in favour of Sh. Virpal Singh. It is important to mention here that the documents produced by the complainant have not been denied by opposite parties No.1 & 5 in this case. Rather the complainant has produced the same documents, as are issued by the opposite parties or are exchanged between them. For that reason, we are of the view that the evidence, which has come on record in the shape of documents produced by both the sides, is sufficient to decide the controversy between the parties, the proceedings being summary Consumer Complaint No.566 of 2018 in nature and filing of complaint through Power of Attorney does not make much difference. Accordingly, the above said objection of opposite parties No.1 & 5 is also rejected.

    13. Now, coming to merits of the case, admittedly, the complainant purchased the unit, in question, from the opposite parties, regarding which Buyer Developer Agreement (agreement), Ex.C-2, was executed on 11.01.2011. Provisional Allotment Letter dated 15.11.2011 was also issued to the complainant in this regard. The sale consideration of the unit was 37,00,000/-, which has admittedly been paid by the complainant to the opposite parties, as per pleadings of reply filed by opposite parties No.1 & 5. As per Clause-14 of the agreement, the project was to be completed by 01.01.2012, subject to force majeure circumstances; failing which the Developer was liable to pay to the complainant a sum of 1,000/- per day for the period of delay. The possession has admittedly been not delivered by the opposite parties to the complainant within the stipulated period or thereafter. The complainant has produced on record photographs, Ex.C-4, the perusal of which clearly shows that the project of the opposite parties has not been completed so far and it is lying in semi- constructed position. No doubt, opposite parties No.1 & 5 have explained the various force majeure circumstances in their reply, yet the fact remains that they have not led any documentary evidence to Consumer Complaint No.566 of 2018 prove that their project was actually hit by those force majeure circumstances and in the absence of documentary evidence, the said plea of opposite parties No.1 & 5 cannot be accepted. No doubt, opposite parties No.1 & 3 produced copies of orders, Annexure OP-3, along with their written arguments, but the fact remains that they have filed any application for producing the said documents by way of additional evidence. Be that as it may, it is relevant to mention that no such stay order granted on 26.04.2011, as alleged in written arguments, has been produced. Perusal of order dated 23.08.2014 passed by Additional District Judge, Chandigarh (attached with the written arguments) shows that the Arbitration case filed by Ionic Reality Limited & Anr. against opposite party No.1 was dismissed. Perusal of order dated 14.03.2014 (attached with the written arguments) passed by the Honble Punjab and Haryana High Court in CWP No.4856 of 2014 shows that status quo order was ordered to be maintained in the meanwhile and the case was fixed for 05.05.2014. Thus, there is no such evidence on record to prove that the operation of the project of the opposite parties was stayed prior to 14.03.2014 and after 05.05.2014. In Sanjay Dhimans case (supra), it was held that interim stay on construction was granted on 26.04.2011 and was vacated on 23.08.2014 and that is why the complainant was not held entitled to compensation for delay in delivery of possession for that period. Consumer Complaint No.566 of 2018 However, in the instant case, the opposite parties have failed to prove that such stay remained in operation for such period and, as such, the ratio of that case is not attracted in this case. Opposite parties No.1 &

    5 produced, along with their reply, the Construction material price index, Annexure OP-1, and Notification dated 04.02.2005, Ex.OP-2, as per which the project, in question, was exempted from all provisions of PAPRA, except Section 32, subject to compliance of various terms and conditions. However, they failed to prove any evidence on record to prove that they have complied with those terms and conditions, in letter and spirit. Thus, it cannot be said that the project of the opposite parties is exempted from provisions of PAPRA. Except these two documents, no other document has been produced by opposite parties No.1 & 5 in support of their defence.

    14. So far as opposite parties No.2 to 4 are concerned, they chose not to appear despite their service and were proceeded against ex parte. The whole purpose of pleadings is to give fair notice to each party of what the opponents case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. For the sake of repetition, it is relevant to mention that opposite parties No.2 to Consumer Complaint No.566 of 2018

    4 failed to appear before this Commission, despite their service and, as such, they were proceeded against ex parte. Thus, all the averments made in the complaint are deemed to have been admitted by them and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against them.

    15. As per Section 5 (Development of land into Colony) of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA), the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they violated Section 5 of PAPRA.

    16. As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA. Consumer Complaint No.566 of 2018

    17. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, they also violated Section 9 of the PAPRA.

    18. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the 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 twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.

    19. The Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite parties, with the hope to get the possession of the unit within a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate Consumer Complaint No.566 of 2018 delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties, i.e. builders, knew from the very beginning that they had not complied with various provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Honble Supreme Court and the Honble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. So far as the plea of the opposite parties that since the construction cost has gone skyrocketing and they are not in a position to deliver possession of the flat to the complainant at the original cost Consumer Complaint No.566 of 2018 and that they are ready to refund the deposited amount with 6% interest thereon, is concerned, it is relevant to mention that there is no default on the part of the complainant in payment of sale consideration and fault only lies on the part of the opposite parties in not completing their project within the stipulated period. In such circumstances, the complainant is entitled to the refund of the entire amount deposited by the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization and compensation. Since the efforts were made by the complainant to get effected the service of opposite parties No.3 & 4 through publication in the newspaper, as discussed above, so this fact is also to be taken care of, while awarding the compensation.

    20. So far as the prayer of the complainant to pay interest/delay charges at the rate of 1,000/- per day, as per Clause-14 of the agreement is concerned, it is relevant to mention that the complainant is praying for refund of the amount deposited by him and not possession of the flat. The said delay charges can be awarded, only if the possession of flat was sought and there is delay and otherwise not.

    21. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties: Consumer Complaint No.566 of 2018

    i) to refund the amount of 37,00,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization; ii) to pay 50,000/-, as compensation on account of the mental agony and harassment suffered by the complainant, including litigation expenses. Consumer Complaint No.567 of 2018

    22. Similarly, this complaint has also been filed by the complainant through her Authorized Agent, Sh. Virpal Singh. In this case also, the complainant was allotted an independent flat measuring 2075 sq.ft. on first floor of the above said project of the opposite parties, regarding which Buyer Developer Agreement, Ex.C-2, executed between the parties on 07.01.2011. The total sale consideration of the said flat was 37,00,000/-. Provisional Allotment Letter dated 25.06.2013, Ex.C-3, was issued in favour of the complainant. Other averments are similar to that of Consumer Complaint No.566 of 2018. Similar prayer has been made in this complaint and similar documents have been produced; as has been made/produced in Consumer Complaint No.566 of 2018.

    23. Upon notice, opposite parties No.1 & 5 appeared and filed their joint reply to the complaint on the similar of their reply, as given in Consumer Complaint No.566 of 2018. Opposite party No.2 did not Consumer Complaint No.566 of 2018 appear despite his service and, as such, he was proceeded against ex parte, vide order dated 12.09.2018. Initially, opposite parties No.3 & 4 could not be served by way of notice sent through registered post and, as such, their service was effected through Publication in the newspaper The Times of India, but as they failed to appear, so they were also proceeded against ex parte, vide order dated 26.03.2019.

    24. The complainant has prayed for refund of 37,00,000/- along with other reliefs. However, she has produced the receipts of only 25,00,000/-, Ex.C-1 (colly.) on the record, alleging that receipts of remaining amount of 12,00,000/- are with the opposite parties. However, opposite parties No.1 & 5 in their reply have specifically denied this fact and pleaded that the complainant has defaulted in making full price of the flat and that she has deposited a sum of 25,00,000/- only with them. Therefore, in the absence of any documentary evidence, keeping in view the specific denial of opposite parties No.1 & 5 in this regard, it is held that the complainant has deposited 25,00,000/- with the opposite parties only.

    25. In view of our above discussion as well as the reasons and discussion held in Consumer Complaint No.566 of 2018, this complaint is partly allowed and following directions are issued to the opposite parties: Consumer Complaint No.566 of 2018

    i) to refund the amount of 25,00,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization; ii) to pay 38,000/-, as compensation on account of the mental agony and harassment suffered by the complainant, including litigation expenses. Consumer Complaint No.568 of 2018

    26. Similarly, this complaint has also been filed by the complainant through her Authorized Agent, Sh. Virpal Singh. In this case also, the complainant was allotted an independent flat measuring 2075 sq.ft. on 2nd floor of the above said project of the opposite parties, regarding which Buyer Developer Agreement, Ex.C-2, executed between the parties on 11.12.2010. The total sale consideration of the said flat was 37,00,000/-, which has been duly paid by the complainant to the opposite parties, vide receipts, Ex.C-1 (colly.). Provisional Allotment Letter dated 21.12.2010, Ex.C-3, was issued in favour of the complainant. Other averments are similar to that of Consumer Complaint No.566 of 2018. Similar prayer has been made in this complaint and similar documents have been produced; as has been made/produced in Consumer Complaint No.566 of 2018.

    27. Upon notice, opposite parties No.1 & 5 appeared and filed their joint reply to the complaint on the similar of their reply, as given in Consumer Complaint No.566 of 2018. Opposite party No.2 did not Consumer Complaint No.566 of 2018 appear despite his service and, as such, he was proceeded against ex parte, vide order dated 12.09.2018. Initially, opposite parties No.3 & 4 could not be served by way of notice sent through registered post and, as such, their service was effected through Publication in the newspaper The Times of India, but as they failed to appear, so they were also proceeded against ex parte, vide order dated 26.03.2019.

    28. In view of the reasons and discussion held in Consumer Complaint No.566 of 2018, this complaint is allowed and following directions are issued to the opposite parties:

    i) to refund the amount of 37,00,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization; ii) to pay 50,000/-, as compensation on account of the mental agony and harassment suffered by the complainant, including litigation expenses.

    29. The compliance of the orders passed in each complaint shall be made by the opposite parties within a period of 30 days of the receipt of certified copies thereof. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER May 14, 2019. (Gurmeet S)

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