in CC No.870 of 2019 as Ex.C-19, Statement of Bank Account dated 06.01.2021 as Ex.C-20, Ledger as Ex.C-21, photocopy of Affidavit of Kashmir Lal dated 11.01.2021 as Ex.C-22, Membership Consumer Complaint No 918 of 2019 Form dated 10.03.2012 along with its true typed copy as Ex.C-23 and photo copy Power of Attorney (vakalatnama) as Ex.C-24. Contentions of the Parties
7. We have heard learned counsel for the parties and have gone through the complaint and evidence available on the record carefully.
8. Learned counsel for the complainant vehemently contended that the complainant booked one plot with the opposite parties in March, 2011 by submitting an application form. A Share Certificate was issued in favour of the complainant. The complainant paid the total sale consideration of Rs.25,42,510/- to the opposite parties. The opposite parties while launching the project were not having the requisite permissions and approvals. The opposite parties are not having even the Completion Certificate. The complainant, number of times, visited the office of the opposite parties to get the possession but of no use. The opposite parties kept on lingering the process on one pretext or the other. When the opposite parties failed to hand over the possession, then the complainant sent a legal notice to which no reply was received. Alleging deficiency in service and unfair fair trade practice on the part of the opposite parties, the complainant filed the complaint. Finally, it is prayed to allow the complaint and grant all the reliefs as prayed for.
9. On the other hand, learned proxy counsel appeared on behalf of the opposite parties argued that there is no deficiency in service and unfair trade practice committed on the part of the opposite parties. Finally, it is prayed to dismiss the complaint with costs. Consumer Complaint No 918 of 2019 Consideration of the Contentions
10. We have given our thoughtful consideration to the respective contentions raised by learned counsel for the complainant.
11. Undisputedly, the complainant became member of opposite party No.1 - Society and a Share Certificate dated 28.04.2012, Ex.C-1 was issued in his favour, entitling him to ownership of plot measuring 200 sq.yds in Sector 113, SAS Nagar, Mohali. As alleged by the complainant in his complaint, a sum of Rs.25,42,510/- has been paid by the complainant to the opposite parties. However, the complainant has proved on record the receipts issued by the opposite parties from their receipt book for an amount of Rs.15,62,510/-, whereas from the other receipts, it is not evident that the cash amounts were paid by the complainant to the opposite parties i.e. Tricity Media, there is no mention of the name of the opposite parties on the receipts. It cannot be ascertained whether these amounts are deposited with the opposite parties or in personal capacity of person signing the receipts. No account ledger has been placed in evidence to ascertain the authenticity of receipts. Therefore, these kinds of receipts cannot be considered to be genuine receipts as evidence. The detail of payments made is as under: Sr.No. Date Receipt No. Amount Exhibit
1. 10.03.2012 877 Rs.3,00,000/- Ex.C-2
2. 21.04.2012 1056 Rs.5,00,000/- Ex.C-4
3. 30.04.2012 1067 Rs.2,510/- Ex.C-6
4. 30.04.2012 1066 Rs.7,60,000/- Ex.C-7 Total Rs.15,62,510/-
12. In this manner, the complainant have deposited a sum of Rs.15,62,510/- with the opposite parties. Vide letter dated 29.10.2012 (Ex.C-11), the opposite parties informed the Consumer Complaint No 918 of 2019 complainant that they have got approval for their Housing Projects in Sector -113, Mohali i.e. i) Change of Land Use was granted on 04.05.2012 vide 1135-STP(S)/SS-11(GR), ii) Promoter Licence granted on 16.07.2012 vide Registration No.58/2012 and iii) Layout plan submitted with GMADA, and expected to be approved within this November, 2012. Thereafter, vide letter dated 02.07.2013 (Ex.C-12), the complainant was requested to clear the instalment dues of Rs.40,000/- within seven days. In the said letter, the opposite parties also asked to attend the meeting on 14.07.2013. Vide another letter dated 09.07.2014 (Ex.C-13), the complainant was informed that the opposite parties were granted License to Start the Development Work. In another letter dated 01.11.2014 (Ex.C-14) issued by the opposite parties, it was mentioned that the complainants name is in the first phase of development. It was also mentioned that the complainant has paid the full land cost instalment against the booked plot and assured the complainant that he will get his booked plot in first Draw of Plots. In the said letter, the opposite parties asked him to intimate the payment schedule for the balance EDC and Development charges for his plot, so that the opposite parties can plan the development works accordingly. However, no written agreement was executed between the parties indicating the stipulated period for delivery of possession of the plot. In such cases, a reasonable period of three years can be considered to complete the development of land from the date of allotment /issue of Share Certificate / receipt of instalments i.e. by 27.04.2015. It is the specific case of the complainant that even after passing of more than 8 years, there is no progress at the site. The Consumer Complaint No 918 of 2019 opposite parties have also failed to file their written statement despite giving the opportunities which shows that they have nothing to produce in evidence which could prove that the development works have been completed. Despite receipt of substantial sale consideration, the opposite parties have failed to deliver possession of the plot to the complainant within a reasonable period of 3 years. All these facts and circumstances clearly prove that the opposite parties have violated various provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA").
13. 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.
14. 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 colony, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
15. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the Consumer Complaint No 918 of 2019 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.
16. 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."
17. 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 plot 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 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. Consumer Complaint No 918 of 2019 There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the flat 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 plot, 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 Hon'ble Supreme Court and the Hon'ble 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.
18. In view of our above discussions, we hold that the opposite parties are liable to deliver legal and physical possession of the plot, in question, complete in all respects and to execute the Sale/Conveyance Deed in favour of the complainant. For delay in delivery of possession, the opposite parties are also liable to pay compensation at the rate of 12% from the stipulated date of possession i.e. 27.04.2015 till actual and physical delivery of possession of the plot, complete in all respects, as discussed above. However, if the opposite parties will not be able to deliver Consumer Complaint No 918 of 2019 possession of the plot, in question, and to execute the Sale/Conveyance Deed, then in the alternative they shall refund the entire amount deposited by the complainant, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period it remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA. Besides this, the complainant is also entitled to suitable litigation expenses and compensation for the mental agony and harassment suffered by him.
19. It is pertinent to mention here that the complainant has not proved on record any evidence which could prove the cost of the plot, however, vide letter dated 01.11.2014 issued by the opposite parties, it is clear that the complainant has paid the full land cost instalment against the booked plot and only EDC and Development charges are to be paid.
20. Sequel to the above discussions, the complaint is allowed and following directions are issued to the opposite parties:
i) to deliver actual, legal and physical possession of the plot, in question, complete in all respects and to execute the Sale/Conveyance Deed in favour of the complainant, subject to the payment of EDC and Development Charges, if any, without interest and penalty; ii) to pay compensation for delay in delivery of possession at the rate of 12% on the amount deposited by the complainant i.e. Rs.15,62,510/- from the stipulated date of Consumer Complaint No 918 of 2019 possession i.e. 27.04.2015 till delivery of possession of the plot, as ordered above. iii) pay Rs.30,000/-, towards compensation for the mental agony and harassment suffered by the complainant, including litigation expenses.
21. The compliance of this part of the order shall be made by the opposite parties within a period of two months from the receipt of certified copy of the order. If the opposite parties fail to comply aforesaid directions within the said period, then the complainant shall be entitled to the alternative relief as under:
i) to refund the entire amount deposited by the complainant i.e. Rs.15,62,510/-, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period it remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization as per Rule 17 of PAPRA; and ii) to pay Rs.30,000/-, towards compensation for the mental agony and harassment suffered by the complainant, including litigation expenses.
22. The compliance of this part of the order shall be made by opposite parties within a period of 30 days after the expiry of above said period of two months. Further the complainant is given liberty to approach appropriate Forum/Court in lieu of receipts placed as Ex.C-3, Ex.C-5 and Ex.C-8 to Ex.C-10. Consumer Complaint No 918 of 2019
23. This complaint could not be decided within the statutory period due to heavy pendency of the court cases and non-sitting of the Commission due to pandemic of COVID-19. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER April 20,2021 parmod