Darshan Singh v. C & C towers

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. Consumer Complaint No.183 of 2019 Date of institution : 05.03.2019 Date of decision : 15.05.2019 Darshan Singh s/o Shri Gurnam Singh, Corresponding Address: Village Bourhai Kalan, Tehsil Malerkotla, District Sangrur, Punjab. .Complainant Versus

1. C&C Towers Ltd., Site Office: C&C Towers, ISBT-cum- Commercial Complex, Opposite Verka Milk Plant, Gate No.5, Phase-6 (Sector 57), Mohali through its Chairman/Director/Managing Director/Manager/Authorized Representative.

2. C&C Towers Ltd., Corporate Office, Plot No.70, Sector 32, Gurgaon, Haryana, through its Chairman/Director/Managing Director/Manager/Authorised Representative.

3. G.S. Johar, Chairman, C&C Towers Ltd., Corporate Office: Plot No.70, Sector 32, Gurgaon, Haryana. ..Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member Present:- For the complainant : Shri Sandeep Bhardwaj, Advocate. For the opposite parties: Ms. Manpreet Kaur, Advocate for Shri Rohit Mittal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: The complainant, Darshan Singh, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, C.P. Act) for the issuance of following directions to the opposite parties:- Consumer Complaint No.183 of 2019

i) to hand over the possession of allotted office space bearing No.26 at 12th Floor in Tower C of Mohali junction immediately with all basic amenities along with completion and occupation certificate issued by GMADA failing which to refund the entire amount of 11,86,500/- deposited by the complainant along with interest @ 18% per annum from the dates of deposits till realization; ii) to pay 2,00,000/-, as compensation, on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss caused to the complainant; and iii) to pay 1,00,000/-, as cost of litigation. Facts of the Complaint:

2. Brief facts, as set out in the complaint, are that the opposite parties made a number of assurances through various newspapers, marketing e-mails and telemarketing with regard to launching of their integrated project under the name and style of C&C Towers and the tower; namely, C&C Capital, having salient features. The complainant is not in the business of sale and purchase of the properties. The complainant is not a property dealer. The complainant was planning to start the business of supply of flowers to florists situated at Mohali with assistance of his family members. The complainant met the vendors in Chandigarh and Mohali and everyone asked for the details of his office. Since the complainant had no commercial office space to use the same for the said Consumer Complaint No.183 of 2019 purpose and in the meantime he came to know about the project of the opposite parties, who made number of assurances about the project and assured about having all the permissions and approvals along with handing over the possession in time. The complainant submitted an application form for the purchase of the unit for his self- use and earning his source of livelihood by self-employing himself over there in the florist business. Along with the Application Form, they also received declaration from him to the effect that I/we further confirm that the property is not being leased by me/us for any unlawful use or purpose or otherwise with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector. The said undertaking shows that the unit sought to be purchased was not for price manipulation or unfair trade practice, but it was for self use of the complainant. Thereafter, the opposite parties issued letter of allotment dated 21.7.2011, vide which unit No.26, 12th Floor, Tower-C, measuring 565 square feet (approx.) was allotted to him. The total BSP of the unit was 33,90,000/- and after adding an amount of 2,50,000/- towards car parking and levying of various charges at the rate of 400/- per square foot the total cost of the unit was fixed at 38,66,000/-. The complainant deposited a total sum of 11,86,500/- with the opposite parties towards the price of the unit. As per Clause 1.3.5 of the allotment letter, the opposite parties agreed to complete the construction and to deliver possession of the unit within a period of

30 months from the date of start of lease period. The date of start of Consumer Complaint No.183 of 2019 lease period was 15.12.2009 and, as such, the date of completion of construction was 14.6.2012. The opposite parties were to handover the possession after completing the commercial complex and after obtaining the requisite approval on or before 14.6.2012. However, no development was started at the site and the work was still abandoned. The complainant came to know through newspaper reports dated 31.03.2013, 20.04.2015 and 24.06.2015 that a notice had been served upon opposite parties No.1 & 2 by GMADA regarding cancellation of agreement with them, due to non- completion of construction. The opposite parties also wrote letter dated 07.05.2015 to one of the similar allottees, informing that the Bankers, GMADA and other stakeholders were committed to extend their financial support and that the construction would be started by July, 2015 and the project would be completed by mid-2017. GMADA also supplied information under RTI Act to one of the allottees, vide letter dated 29.09.2016, informing that neither any licence had been granted to the opposite parties, nor any agreement was executed by them with the Government. The opposite parties, vide letter dated 24.12.2015 written to the allottees, furnished vague reason for delay in completion of the project and mentioned about efforts being made to restart the project. Another allottee also sought information under RTI Act from GMADA; who, vide letter dated 11.03.2016, informed that proceedings had been initiated by GMADA for cancellation of agreement of the opposite parties due to non-completion of the project in time. It was also informed that the Consumer Complaint No.183 of 2019 reason for delay in completing the project was disclosed by the opposite parties to be non-availability of funds with them. The opposite parties received an amount of 11,86,500/- from complainant, but they did not reach the first floor slab by raising construction, from which first installment was to be commenced and, as such, the opposite parties retained the hard earned money of the complainant, without any basis. No requisite permissions and approvals were obtained by opposite parties on the date of receiving the registration amount from complainant. Thus, they also violated various provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA), which they were bound to comply with. Due to deficiency in service on the part of the opposite parties, the complainant suffered mental agony and harassment. Hence, the present complaint. Defence of the Opposite Parties

3. Upon notice, the opposite parties appeared and filed joint reply to the complaint, raising preliminary objections/submissions that this Commission has no pecuniary jurisdiction to entertain and decide the complaint, as the complainants have sought refund of 11,86,500/-, along with interest at the rate of 18% per annum and compensation of 2,00,000/-, besides cost of litigation of 1,00,000/-. The complainant does not fall under the definition of consumer, as defined in the C.P. Act, as he purchased the unit, in question, for commercial purpose and not for self-employment. In the application for allotment, in the column of profession, the complainant nowhere Consumer Complaint No.183 of 2019 stated that he is in the business and it is stated that he is already earning his livelihood. Therefore, there is no occasion for him to book the unit for the purpose of earning his livelihood. Moreover, the unit booked by the complainant is a commercial unit, situated in the commercial project, having only commercial office spaces and retail spaces. Due to the ongoing slump in the real estate market, the complainant is no more interested in retaining the unit in question. The complainant does not intend to earn his livelihood or use the unit in question in any manner other than as an investment for speculative purposes to sell it off later at a premium. Owing to plummeted real estate market, he is now seeking to retract his investment so as to avoid losses on his speculation. Therefore, he is not covered under the definition of consumer as defined under the C.P. Act. As per Clause 1.15 of the allotment letter, due to mis- representation/concealment on the part of the complainant, the entire amount deposited by him is liable to be forfeited. The complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. Clause 1.2.1 thereof states that timely payments were the essence of the contract, but the complainant failed to make payments in a timely manner. As per Clause 1.2.2 of the Letter of Allotment, a licensee is entitled to request for cancellation of the allotment, whereupon the licensor (opposite parties) has the option to accept such request and to refund 50% of the amount paid, without any interest. It was further pleaded that there was no mandatory time for completion of the Consumer Complaint No.183 of 2019 construction, nor there was any binding obligation upon the opposite parties to complete the space within 30 months, but the same was likely to be completed within that period, that too subject to force majeure circumstances mentioned in Clause 1.3.5 of the letter of allotment. The project, in question, is being developed by the opposite parties on a piece of land owned by GMADA under Public Private Partnership (PPP) mode in Design, Build, Operate, Transfer and Finance (DBOTF) format. This project was allotted to the opposite parties by way of a transparent tender allotment process through bidding, vide Notice of Award dated 06.02.2009. A Concession Agreement for developing said project was duly executed on 15.04.2009 amongst C & C Towers Ltd.; GMADA; State Government of Punjab, through the State Transport Department; and the Punjab Infrastructure and Development Board (PIDB). As per the terms of the said agreement, the conditions with regard to obtaining of requisite approvals/ permissions/NOCs were to be completed and thereafter the land, in question, was leased out to the opposite parties for 90 years with effect from 15.12.2009. The opposite parties immediately got their layout plans/designs approved from GMADA, vide letter dated 27.01.2010 and thereafter the construction was started and a substantial part of the project has been developed. However, in the month of January/February, the then Deputy Chief Minister, Punjab directed certain changes in the approved designs and plans, such as increasing number of basements from 2 to 3 in Towers B & C. Thereafter, up till 04.04.2011, when the revised Consumer Complaint No.183 of 2019 plans/designs were finally approved, various revised plans/designs were prepared for approval. In this regard, a letter dated 29.12.2010 was issued by GMADA to the opposite parties. The opposite parties had to halt the construction in the month of January, 2010 and necessary changes were made multiple times. Thus, the delay of one year and three months occurred owing to no fault of the opposite parties. It was further pleaded that owing to heavy rains in the intervening night and early morning of 6/7.09.2011, some constructed portion of Tower-C collapsed, due to no fault of the opposite parties and the same had to be subsequently re- constructed. This fact is evident from the information provided by the Indian Meteorological Department, vide letter dated 02.07.2012. It was further pleaded that in June, 2012, the Honble Punjab and Haryana High Court directed stoppage of mining in the State of Punjab, including Ropar and Mohali Districts; which resulted in severe shortage and non-availability or raw materials, as a result of which progress of the project was severally impacted. The mining activity could only commence after December, 2012. Despite all these force majeure circumstances, the opposite parties completed the construction and development of a state of art Air-Conditioned ISBT, Mohali; which was inaugurated by the then Deputy Chief Minister, Punjab on 16.11.2016. The opposite parties have neither diverted any funds elsewhere nor they had any intention of not completing the construction and development of the project. Inauguration of the Bus Stand by the then Deputy Chief Minister Consumer Complaint No.183 of 2019 shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. It was further pleaded that real estate growth underwent a downward spiral after the US Mortgage Crisis of 2011-12, which resulted in stark reduction of investment in the present project. On account of the fact that the said ISBT is non-operational due to omissions on the part of the State Government, the opposite parties are earning zero revenue from the said ISBT and rather they are bearing exorbitant maintenance expenses on the same. Thus, there is no deficiency in service on the part of the opposite parties. Intricate questions of law and facts are involved in the present case and this Commission has no jurisdiction to entertain and decide the same, rather the same can be properly decided only under the provisions of the Specific Relief Act and Indian Contract Act. It was further pleaded that opposite party No.3 has been wrongly arrayed as party in the complaint, as no specific role has been attributed to him. The present dispute and grievance of the complainant is only against opposite parties No.1 & 2-Company, which is a distinct juristic person in the eyes of law, having capacity to sue as well as to be sued. Thus, the complaint is liable to be dismissed against opposite party No.3. It was further pleaded that the opposite parties are not bound by the provisions of PAPRA, as the project, in question, is based on a Public Private Partnership Mode (PPP Mode) granted to the opposite parties on a leasehold basis. On merits, similar pleas, as raised in preliminary objections, were reiterated. All other allegations levelled in the Consumer Complaint No.183 of 2019 complaint were denied and it was prayed that the complaint be dismissed with costs. Evidence of the Parties

4. To prove his complaint, the complainant along with the complaint annexed his own affidavit and documents Ex.C-1 to Ex.C9 and Mark-A to Mark-C. On the other hand, the opposite parties, along with their reply, annexed the self-attested affidavit of Arunav Pankaj, Authorized Signatory and documents Ex.OP-1 to Ex.OP-17 and Mark OP-A and Mark OP-B (colly). Contentions of the Parties

5. We have heard learned counsel for the parties and have gone through the record carefully.

6. Learned counsel for the complainant has vehemently contended that the complainant is not in the business of sale and purchase of the properties. He purchased the space, in question, just for earning his livelihood by way of self-employment, as he wanted to run the business of florist with the assistance of his family members in the said office space. Therefore, the complainant duly falls under the definition of consumer. Moreover, the opposite parties failed to prove that the unit, in question, was purchased by him for generating any profits. It has further been contended that along with the application for allotment of the unit, in question, an undertaking was duly taken from the complainant, to the effect that the unit was not purchased with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector. It Consumer Complaint No.183 of 2019 has been further contended that as per clause 1.3.5 of allotment letter, Ex.C-3, the construction of the unit was to be completed within

30 months from the date of start of the lease period, after obtaining necessary approvals and sanctions, subject to force majeure circumstances and reasons beyond the control of the Concessionaire/Licensor. The lease started on 15.12.2009. The opposite parties received a sum of 11,86,500/- from the complainant towards the price of the unit, in question, but they failed to complete the said project within the stipulated period, without disclosing any cogent reasons. No development was carried on at the site. The complainant came to know from the newspapers that the agreement between the opposite parties and GMADA has been cancelled and apprehending safety of his financial interest, he sought refund of the amount deposited from the opposite parties. The opposite parties committed deficiency in service and unfair trade practice, by not honouring their commitments, as per the allotment letter. Accordingly, it has been contended that the complaint be allowed and all the reliefs, as prayed for in the complaint, be awarded in favour of the complainant.

7. Per contra, learned counsel for the opposite parties has contended that the commercial space, in question, was purchased by the complainant for commercial purpose for earning profits. The complainant failed to prove that he purchased the said unit for earning his livelihood by way of self-employment. Thus, the complaint is liable to be dismissed on this score alone. It has further Consumer Complaint No.183 of 2019 been contended that the complainant has not made the payments as per the Payment Schedule regularly and has only paid a sum of 11,86,500/-. The construction has been raised, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction/completion of the project was due to the delay on the part of GMADA to approve the drawings and designs of the project. It has further been contended that in June, 2012, there was severe shortage of raw material due to ban imposed by the Honble Punjab and Haryana High Court, as a result of which progress of the project was severally impacted. Despite all these force majeure circumstances, the opposite parties completed the construction and development of the Air-Conditioned ISBT, Mohali; which was inaugurated by the then Deputy Chief Minister, Punjab on 16.11.2016. Inauguration of the Bus Stand by the then Deputy Chief Minister shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. Thus, there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. Consideration of Contentions

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

9. So far as the contention of the learned counsel for the opposite parties that the unit, in question, is a commercial space and the complainant had purchased the same with the sole purpose of Consumer Complaint No.183 of 2019 earning profits, is concerned, the same cannot be accepted on the face of it; specifically in view of the fact that it is the categorical averment of the complainant that he has purchased the commercial space for earning his livelihood, by way of self-employment. No cogent evidence has been led by the opposite parties to dislodge the said averment. Merely purchasing a space, which is commercial in nature, will not always lead to the fact that it is purchased only for gains. When a person takes the property for self-employment to earn his livelihood, then certainly such a property will not come under the definition of commercial. The true spirit behind the purchase of the unit, in question, is to be seen. The opposite parties failed to produce any evidence on record to rebut this fact. Besides this, there is also no evidence from their side to prove that the complainant purchased the space, in question, for commercial purpose by employing many persons. The bona fide of the complainant to use the space, in question, for the purpose of earning his livelihood by way of self-employment has been duly mentioned in the complaint and no documentary evidence to rebut the same has been produced by the opposite parties on record. The fact remains that opposite parties miserably failed to prove that the complainant purchased the unit, in question, for commercial purpose to earn profits therefrom. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI Consumer Complaint No.183 of 2019 KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015 held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the case in hand also, as already discussed above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale/purchase of properties or that he has purchased the unit, in question, for further sale or for earning profits. In view of the law laid down by the Honble National Commission in the above said case, the objection of the opposite parties is rejected, holding the complainant as consumer.

10. So far as the objection of the opposite parties regarding pecuniary jurisdiction of this Commission is concerned, it is relevant to mention that the total price of the unit, in question, is more than 20,00,000/- and even the relief claimed in the complaint is more than 20,00,000/- and, thus, the matter in hand squarely falls within the pecuniary jurisdiction of this Commission, in view of the ratio of the law laid down in I (2017) CPJ 1 (NC) (AMBRISH KUMAR SHUKLA & 21 ORS. v. FERROUS INFRASTRUCTURE PVT. LTD) and accordingly the objection of the opposite parties in this regard is Consumer Complaint No.183 of 2019 also rejected. The authorities relied upon by the learned counsel for the opposite parties in the reply are not applicable.

11. The further objection of the opposite parties is that complaint is not maintainable before this Commission, in view of Arbitration Clause 1.24 in the Letter of Allotment. In this respect, it is relevant to mention here that the Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., held that an Arbitration Clause in the afore- stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Honble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an Arbitration Clause in the allotment letter is not a bar to resolve this dispute by this Commission. Accordingly, the said objection of the opposite parties is also rejected.

12. Now, coming to the merits of the case. Admittedly, vide letter of allotment dated 21.7.2011, Ex.C-3, the complainant was allotted Consumer Complaint No.183 of 2019 unit No.26, Tower C, 12th Floor, measuring 505 square feet (approximately) in the project of the opposite parties. As per version of the complainant, the total cost of the unit, in question, was 38,66,000/-, including car parking charges and various other charges, against which he deposited a total sum of 11,86,500/- with the opposite parties, vide receipt dated 21.9.2012, Ex.C-2. As per clause 1.3.5 of the allotment letter, Ex.C-3, the construction of the unit was likely to be completed within 30 months from compliance date i.e. 15.12.2009, after obtaining all the necessary approvals and sanctions, subject to force majeure circumstances. Therefore, the construction of the unit, in question, was to be completed and possession was to be delivered upto 15.06.2012. The complaint has been filed on 5.3.2019 i.e. after about seven years therefrom. However, the opposite parties failed to complete the construction of project/unit within the stipulated period, without any sufficient cause, so as to deliver possession of the unit, in question, to the complainant.

14. No doubt, in the present case, the opposite parties have produced a copy of Concession Agreement Ex.OP-4 for Development of Bus Terminal-Cum-Commercial Complex at Mohali on design-built-operate-transfer (DBOT) basis, executed amongst Greater Mohali Area Development Authority, M/s C&C Towers Limited, State Transport, Government of Punjab and Punjab Infrastructure Development Board; but the fact remains that the complainant purchased the unit/space, in question, from the opposite Consumer Complaint No.183 of 2019 parties and has made the payment of substantial amount to them. It is the inter-se arrangement/agreement between the opposite parties and other departments of the Government of Punjab, but the complainant cannot be made to suffer for the same. Even otherwise the opposite parties have failed to prove that the terms and conditions of the Concession Agreement have been complied with by them. Be that as it may, the fact remains that more than four years have already lapsed after expiry of stipulated period for delivery of possession, but the project has not been completed in all respects. The delay in completing the construction has also been duly admitted by the opposite parties themselves in their reply. Once the complainant was satisfied that there was no likelihood of the completion of the project in question, therefore, he was well within his rights to withhold the payment of further instalments towards the price of the space/unit, as there is no fun in first depositing the amount and thereafter to claim refund of the same.

15. It is also relevant to mention that the opposite parties wrote letter dated 14.07.2017, Ex.C-8, to other allottees; namely, Charanjit Singh and Kamaljit Kaur, vide which they agreed to pay interest at the rate of 8.8% per annum on their deposited amount from the date of receipt of 35% of the BSP to 31.08.2016, which was to be paid in four equated quarterly instalments, commencing from October- December, 2017. They were asked to sign an undertaking, giving their concurrence to extend the construction timeline by three years commencing from September, 2016 to August, 2019, during which Consumer Complaint No.183 of 2019 they would not be eligible to claim payment of interest damages. This letter clearly proves that the opposite parties failed to complete the project within the stipulated time frame and they further sought extension for completing the construction timeline from September, 2016 to August, 2019. Still further, the opposite parties pleaded in their reply that the delay in the project was due to various variations in the layout and designs of the project effected by the State Government. This reason is not a force majeure circumstance and the same can well be foreseen by the opposite parties before commencing the project and receiving amounts from different purchasers, including the complainant. No doubt, environmental clearance was granted to the opposite parties, vide letter dated 29.10.2009, Ex.OP-12; NOC from Punjab Pollution Control Board was granted, vide letter dated 09.04.2010, Ex.OP-13; NOC from PSPCL was granted, vide letter dated 03.11.2016, Ex.OP-15, but the fact remains that the same were granted subject to compliance of certain terms and conditions. However, the opposite parties have not produced on record any evidence to prove that they have complied with those terms and conditions, in letter and spirit. The opposite parties also produced on record Partial Occupation Certificate dated 15.12.2016, Ex.OP-17, only for Block-A, Basement-1, Basement-2, Lower Ground Floor, Ground Floor & First Floor, whereas the unit of the complainant is situated on 5th Floor of Tower-B. However, in the absence of Completion Certificate as envisaged under Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, Consumer Complaint No.183 of 2019 PAPRA), this Partial Completion Certificate is not sufficient to prove that the project is fully complete. It is also relevant to mention that one another allottee sought information under RTI Act from GMADA. GMADA, vide letter dated 29.09.2016, Ex.C-5, supplied the requisite information to her, informing that no licence of construction was granted to the opposite parties, nor any agreement was entered into by the opposite parties with the Government. Still further, as per letter dated 14.03.2016, Ex.C-7, issued by GMADA, the process for cancelling the agreement of the opposite parties had already been initiated, due to non-completion of the project within the stipulated period. It is also mentioned therein that the reason for delay in completing the project was disclosed by the opposite parties to be paucity of funds. The opposite parties failed to complete the project within the stipulated period. They have neither completed the work of construction of the project, nor have submitted the copies of any Lease Deeds to GMADA. The opposite parties also defaulted in making the payment of upfront money, annual concession money, interest, causing consequential damages to GMADA; as a result of which the Chief Administrator, GMADA had issued termination notice to opposite party No.1 on 04.04.2016, but it sought extension of time in completing the project, which is still under consideration of the authorities. To rebut the letter, Ex.C-7, discussed above, the opposite parties have produced on record letter dated 12.06.2018, Ex.OP-16, issued by GMADA, in which clarification was given that no licence was granted by GAMDA to the opposite parties and on Consumer Complaint No.183 of 2019 instructions of Punjab Government, PIDB issued Notice of Award in favour of the Company, allowing it to raise construction in the project, as per approved designs by the GMADA only. It was also stated therein that copy of Notice of Award was attached with the said letter, but no such copy has been attached therewith, from which the contents of that letter could be proved. In such circumstances, the complainant cannot be made to wait for an indefinite period of time for the completion of the project and delivery of the space/unit in question. This certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties.

16. The opposite parties further contended that opposite party No.3 has been wrongly arrayed, as party as no specific role has been attributed to him and, therefore, the complaint is liable to be dismissed against him. In this respect, it is relevant to mention that opposite party No.3 is the Chairman of opposite parties No.1 & 2- Company and is responsible for the day to day affairs of the said Company. Thus, it cannot be said that he has been wrongly impleaded in the complaint.

17. Keeping in view the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the PAPRA. As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such project is developed or such building is constructed or is to be Consumer Complaint No.183 of 2019 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 project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with Section 3 of the PAPRA.

18. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such valid permission. So, they also violated Section 5 of PAPRA.

19. 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/commercial space/unit, 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, the opposite parties also violated Section 9 of the PAPRA.

20. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The opposite parties are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the Consumer Complaint No.183 of 2019 aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit, in question, within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.

21. The Act came into being in the year 1986. It is the benevolent piece 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 in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of unit and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat/space within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the unit booked. 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 the provisions of the Consumer Complaint No.183 of 2019 PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the unit, 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. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.

22. 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.

23. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties: Consumer Complaint No.183 of 2019

i) to refund 11,86,500/- deposited by the complainant, along with interest at the rate of 12% per annum from the respective dates of deposits till realization, as per Rule 17 of PAPRA; and ii) to pay 25,000/-, as compensation, for the mental agony and harassment suffered by the complainant, including litigation expenses.

24. The compliance of the order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy thereof. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER May 15, 2019 Bansal