FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. Consumer Complaint No.196 of 2019 Date of Institution: 07.03.2019 Order reserved on: 27.11.2020 Date of Decision : 21.12.2020 Joban Mathew son of Mathew Phillipose, resident of House No.1686, Phase-10, SAS Nagar (Mohali), through his authorized signatory and mother Ms. Susamma Mathew wife of Mathew Phillipose, resident of House No.1686, Phase-10, SAS Nagar (Mohali). ..Complainant Versus
1. M/s Land Twisters, Main Office: Opp. Ansal Golf Links II, Sector 115, SAS Nagar, Mohali (Punjab) and Corporate Office, Apples Height, VIP Road, Zirakpur, District Mohali, Punjab, through its Managing Director Mr. Pankaj Sood (Email ID: into@landtwisters.in)
2. Mr. Pankaj Sood, Managing Director, M/s Land Twisters, R/o Signature Towers, Flat No.202, Second Floor, Sector 66-A, SAS Nagar, Mohali (Punjab) (Email ID: pankajsood23@gmail.com) ..... Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Quorum:- Mr. Rajinder Kumar Goyal, Presiding Member Mrs. Kiran Sibal, Member Present:- For the complainant : Sh. D.S. Sandhu, Advocate For the opposite parties : Ex-parte Consumer Complaint No.196 of 2019 2 KIRAN SIBAL, MEMBER:- The complainant has filed this complaint, through his authorized signatory and mother Susamma Mathew, under Section
17 of the Consumer Protection Act, 1986 (in short the Act), against the opposite parties (in short OPs) seeking following directions to them:-
i) to refund an amount of Rs.3,00,000/- paid to the OPs alongwith interest @18% per annum from the date of deposit till realization to complainant; ii) to pay Rs.2,00,000/- towards harassment, mental agony for indulging in unfair trade practice and for deficiency in service; and iii) to pay Rs.55,000/- towards costs of litigation expenses. Any other relief which this Commission deems fit and proper may kindly be granted in favour of complainant.
2. Brief facts, as set out in the complaint, are that OPs had advertised a housing project under the name and style of Land Twisters with its Corporate Office at Zirakpur, District Mohali, Punjab in various newspapers regarding their project. Allured by the advertisements and tall claims made by the OPs, the complainant went to their office, where he was assured that the construction would start very soon and they would complete the project and would hand over the possession within a period of two years. It was Consumer Complaint No.196 of 2019 3 further assured that it would be the world class construction and best of the amenities would be provided and prices offered would be most competitive in the market. As per the terms and conditions contained in the booking form, the total sale price of 3BHK, 1350 square feet was Rs.34.50 lakhs. They further agreed to provide 3 ACs (1.5 ton window), one chimney, one modular kitchen, cup boards, POP, double door, covered car parking in the said flat. The complainant paid Rs.20,000/- at the time of submission of application form on 17.07.2016, Ex.C-1. He further paid two part payments i.e. Rs.80,000/- and Rs.1,00,000/- and receipts were issued on 27.07.2016 and 09.09.2016, vide Ex.C-2 and C-3. The complainant paid the payments to OPs from the account of his mother, vide Ex.C- 4, the bank statement. It is further averred that no development work had taken place at the site. The OPs even did not start the construction of 3BHK flats for which the complainant had made the payments. Thereafter, complainant made several telephone calls to OPs, but no response was solicited from the OPs. He also visited the site number of times, but no satisfactory reply was given by the OPs as to when they would start construction and deliver the possession. The conduct of OPs caused great financial loss besides harassment, mental agony to the complainant. He has been visiting the office of the OPs for getting allotment letter/agreement or to know outcome of the project, but to no effect. Hence the present complaint Consumer Complaint No.196 of 2019 4 Defence of OPs
3. Upon notice, OPs failed to appear, hence they were proceeded against ex-parte, vide order dated 22.10.2019. Evidence of the complainant
4. To prove his claim, the complainant, along with the complaint filed affidavit of his mother, Susamma Mathew, authorized signatory, alongwith documents i.e. booking form-cum-street, Ex.C- 1, copy of receipt dated 01.08.2016, Ex.C-2, copy of receipt dated 22.08.2016, Ex.C-3 and copy of bank statement, Ex.C-4. Contentions of the complainant
5. We have heard learned counsel for the complainant, as OPs were set against ex-parte in this case and have carefully gone through the record of the case.
6. Learned counsel for the complainant contended that the complainant applied for purchase of 3BHK flat, measuring 1350 square feet, and as per terms and conditions of booking form, the total price of the flat was agreed as Rs.34.50 lakhs along with various amenities and facilities. The complainant paid Rs.20,000/- at the time of submission of application form on 17.07.2016, Ex.C-1. He further paid two part payments i.e. Rs.80,000/- and Rs.1,00,000/- and receipts were issued on 27.07.2016 and 09.09.2016, vide Ex.C-
2 and C-3. Despite receipt of payment, the OPs had not started the construction of 3BHK flats. Alleging deficiency in service and unfair Consumer Complaint No.196 of 2019 5 trade practice on the part of OPs, learned counsel for the complainant prayed for acceptance of the complaint. Consideration of Contentions
7. We have given thoughtful consideration to the contentions raised by the learned counsel for the complainant and also gone through the record of the case.
8. At the outset, it is relevant to mention that the merit of the present complaint is squarely covered by the earlier verdicts given by this Commission in following cases: Consumer Complaint No.390 of 2018 (Ravi Chandra Vs. Land Twisters), decided on 08.08.2018; So, we proceed to dispose of the present complaint, in view of the decisions given in the above noted cases.
9. Admittedly, the complainant booked 3BHK flat on 17.07.2016 bearing unit no.360, 1st floor, measuring 1350 square feets, in the project of OPs Land Twisters Homes, Sector-116, Mohali, vide Ex.C-1. The basic sale price of the flat was Rs.34,50,000/-. As per the pleadings in the complaint, the complainant had deposited an amount of Rs.3,00,000/- with OPs, vide Ex.C-4, as per table given below:- Sr.No. Date Amount (Rs.) Exhibit no.
1 17.07.2016 20,000 C-1
2 27.07.2016 80,000 C-2
3 09.09.2016 1,00,000 C-3 Consumer Complaint No.196 of 2019 6
4 03.10.2016 1,00,000 C-4 Total 3,00,000 It has been alleged by the complainant that despite receipt of above payments, the OPs did not even start the construction work of 3BHK flats in the said project. The complainant booked the plot on 17.07.2016, vide Ex.C-1 with OPs. In this case, no allotment letter alongwith payment schedule, was issued by OPs to the complainant, which amounts to deficiency in service. OPs vide Ex.C-1, allotted Unit no.360, 1st floor, 3BHK, measuring 1350 square feet to the complainant. After receiving the said payment of Rs.3,00,000/-, the OPs have not even started the construction work of 3BHK flats, which is sheer deficiency in service on the part of OPs. Non- issuance of allotment letter and subsequent agreement is itself amounts to deficiency in service on the part of OPs.
10. 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. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. For the sake of repetition, it is relevant to mention that in the present case, OPs failed to appear and they were Consumer Complaint No.196 of 2019 7 proceeded against ex-parte. Thus, the evidence adduced by the complainant remains unrebutted. In view of this, all the averments made in the complaint are deemed to have been admitted by the OPs and an adverse inference is to be drawn against it. It is, therefore, held that the OPs are deficient in rendering service to the complainant.
11. As per Section 5 (Development of land into Colony) of PAPRA, OPs were liable to obtain permission from the competent authority for developing the colony, but they failed to obtain the same. So, they also violated Section 5 of PAPRA.
12. 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 OPs did not comply with the same. As such, the OPs also violated Section 9 of the PAPRA.
13. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest, but OPs failed to refund the same and are deficient in service.
14. The OPs had been collecting huge amounts from the buyers for the development of the project. The OPs 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 Consumer Complaint No.196 of 2019 8 by the reciprocal promises of performing their part of the agreement. OPs have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of flat within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is liable to be suitably compensated.
15. 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 OPs with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the OPs made false statement of facts about the goods and services i.e. allotment of flat and delivery of possession in a stipulated period. The act and conduct of OPs 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 OPs, he would have invested the same elsewhere. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts of the complaint and evidence brought on the record by complainant, it is clearly made out Consumer Complaint No.196 of 2019 9 that OPs i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to purchase 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. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by them, along with interest and suitable compensation.
16. The complainant has prayed for refund of Rs.3,00,000/- along with interest. Perusal of bank statement Ex.C-4 (colly) shows that complainant had deposited a total amount of Rs.3,00,000/-. As such, the complainant is entitled to refund of Rs.3,00,000/-. As per Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon Consumer Complaint No.196 of 2019 10 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.
17. Sequel to our above discussion, we accept the complaint of the complainant and following directions are issued against OPs:
(i) to refund the amount of Rs.3,00,000/- alongwith compensation in the shape of interest @12% per annum from the date of deposit till the actual realization for deficiency in service on the part of OPs and for mental harassment; and
(ii) to pay Rs.20,000/- as litigation expenses. The compliance of this order shall be made by the OPs within a period of 60 days of the receipt of certified copy of the order.
18. The complaint could not be decided within the statutory period due to heavy pendency of work and less staff. (RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER December 21, 2020 (MM)