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Bajwa Developers Ltd. & Others v/s Harpreet Bhagirath & Others

    First Appeal Nos. 1038, 1306, 1307, 1308 of 2018

    Decided On, 09 January 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellants: Johny, Advocate. For the Respondents: Nemo on Caveat in FA/1038/2018.

Judgment Text

Heard the Learned Counsel for the Appellants on the delay in filing the Appeals.

Delay has sufficiently been explained. Accordingly, it is condoned.

Heard learned Counsel for the Appellants and perused the impugned orders, passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (hereinafter referred to as 'the State Commission'). The State Commission, by well-reasoned orders, has allowed the Complaints preferred by the Complainants, Respondents herein. The State Commission has recorded the following findings against the Opposite Parties, Appellants herein. The relevant portion of the order passed by the State Commission in Complaint No. 218/2017 is reproduced here as under:-

'14. Admittedly, plot No.2337 measuring 200 sq.ft., situated in the project of the opposite parties, was purchased by the complainant from its earlier allottee Dr. Reema Goyal and Sh. Sandeep Goyal, R/o Patiala, who had already paid Rs.16,00,000/- to the opposite partie

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s and that amount was adjusted towards the amount paid by the complainant. Agreement to sell Ex.C-2was executed on 10.05.2012 regarding sale of above said plot. It is also not in dispute that the total amount of the plot i.e. Rs.27,20,000/- has already been paid by the complainant to the opposite parties and this fact has been duly admitted by the opposite parties in their reply in Para No.4 of the preliminary objections. The complainant alleged that the said plot was further sold by the opposite parties to one Jagjit Singh S/o Sh. Paramjit Singh and in lieu of that plot, the opposite parties offered another plot No.2190 to her in the same project, which she accepted. However, on visiting the site, no plot No.2190 existed there and the entire land was cultivated for agriculture purpose. To prove this fact, the complainant has duly produced copies of photographs Ex.C-5 to Ex.C-7, the original of which are Annexures C-5 to C-7. The opposite parties duly admitted the fact of allotment of plot No.2190 in favour of the complainant, in Para No.3 of the preliminary objections. However, there is no agreement to sell regarding sale of this plot, which means that the opposite parties allotted the said plot without executing any agreement and, thus, adopted unfair trade practice. The opposite parties failed deliver possession of the allotted plot to the complainant within the stipulated time. Even otherwise, there was no development at the site, as shown in the above photographs. The opposite parties tendered only the affidavit of Sh. Jarnail Singh Bajwa, Managing Director, which is nothing but the verbatim reproduction of the reply filed by them. Except this affidavit, no other evidence has been led by the opposite parties to prove that they are in a position to deliver the possession of the plot, in question, to the complainant or that they have obtained the requisite approvals, sanctions and licenses to develop/raise the project, in question.

15. All the above facts and circumstances clearly prove that the opposite parties have not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, '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 his 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.

16. 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/sanction/licence. So, they also violated Section 5 of PAPRA.

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. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.

18. 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.

19. 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.'

20. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not developing the possession of plot 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 Consumer Protection 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 entire amount to the opposite parties, with the hope to get the possession of the plot 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 plot and delivery of possession thereof 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 her money with the opposite parties, she 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 within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to complete the plot and to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the plot and kept on offering one plot after the another, 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 amount paid by the complainant is a deposit held by the opposite parties, in trust of complainant and it should be used for the purpose of developing the plot, as mentioned in Section 9 of PAPRA. 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. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused, which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In these circumstances, the complainant is entitled to the refund of the amount deposited by her, along with interest and compensation.

22. The complainant has claimed refund of Rs.27,20,000/-, along with interest at the rate of 24% (Rs.35,42,200/-). Hon’ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. In view of the above authority as well as Rule 17 of PAPRA, the complainant is entitled to the refund of his deposited amount, along with interest at the rate of 12%.'

From the perusal of the findings recorded by the State Commission, we are of the considered view that the State Commission has recorded the above findings on the basis of appreciation of evidence and material on record and the findings do not suffer from any irregularity.

The First Appeals fail and are therefore dismissed.

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