Paramjeet Singh Dhaliwal, President
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”) through his Power of Attorney Sh. Parminderjit Singh, against the opposite parties, seeking following directions to them:
(i) to hand over the possession of the office space, in question, immediately and on failure to refund the amount of Rs. 18,08,800, along with interest at the rate of 18% per annum from the date of deposit till actual payment;
(ii) to pay Rs. 3,50,000 on account of mental agony and harassment and financial loss etc. suffered by the complainant; and
(iii) to pay Rs. 31,000 towards litigation expenses.
(iv) Any other relief, as may be deemed fit in view of the facts and circumstances of the case, may also be awarded.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that the opposite parties issued various advertisements in newspapers, marketing, e-mails and telemarketing with regard to launching of their integrated project for modular office space in the under construction commercial complex as part of Bus Terminal-cum-Commercial Complex, Sector 57, Mohali having the salient features as given in the brochure. Being allured by the said advertisement of the opposite parties, the complainant applied for purchasing a unit exclusively for the purpose of creating the source of livelihood by means of self-employment, as complainant No. 2 is M.B.B.S., M.D. (Medicine) and had planned to run a clinic therein. On 20.1.2012, a sum of Rs. 2,85,000 was deposited by the complainant with the opposite parties, vide cheque No. 008833 drawn on Bank of India, Kashmir Avenue Branch. Another sum of Rs. 15,23,200 was paid by the complainant, vide cheques No. 008314, No. 008840 and No. 254962. On 23.5.2012, the opposite parties issued the allotment letter, containing all the terms and conditions; whereby unit No. 27, Type “Commercial Modular Office Space, Tower-C, Floor 16th, having super area of 238 sq.ft. was allotted to him. The complainant opted for payment plan i.e. “11% Assured Return Payment Plan” (Annexure A1).
As per that payment plan, basic sale price was fixed at the rate of
Rs. 8,000 per sq.ft. and Rs. 400 per sq.ft. for the Interest Free Maintenance Security (IFMS), Power back-up charges, external electrification charges (EEC) and firefighting equipment charges (FFEC) and one time lease administrative fee etc. The complainant had already deposited a total sum of Rs. 18,08,800 with the opposite parties i.e. 85% of the price of the unit and the opposite parties had been repaying the interest at the rate of 11% per annum on account of assured return plan at the rate of Rs. 13,963 per month from March, 2012 to July, 2017, totaling Rs. 8,11,635 after deducting the TDS amount of Rs. 89,344, but they did not pay any other amount from August, 2017. The opposite parties started receiving the sale consideration from the complainant, ignoring the various provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”). The opposite parties agreed to complete the construction of the unit within 48 months from the date of compliance i.e. 15.12.2009, as per Clause 1.3.3 of the allotment letter, i.e. up to 15.12.2013. However, they failed to do so within that period. On 21.11.2017, opposite party No. 3 sent a letter to the complainant, stating as under:
“Keeping your sentiments and wishes in mind, I convey the following:
The Company will refund the deposits of the investor’s money along with interest. However, the proposal for refund needs to be put up to the Board of Directors of C & C for clearance and waiver of the clause of forfeiture of 50% of the deposit. Investors are thus requested to apply individually citing the space number and other details.
The rate of interest will be as per the conditions of the allotment letter. The refund of the Principal and Interest will be made in six equated monthly instalments (PDC’s) from 1.4.2018. The PDCs will be issued within 30 working days of receipt of refund application.
The time period for computation of interest is from the date of payment of 35% of sale value of space to the date of refund/disbursement.
I would also to state that all investors who want to stay invested with us will be given interest on their deposits at 8.8% along with other applicable conditions already communicated to you by my staff.”
On 6.6.2018, opposite party No. 3 sent another letter requesting for extension of time till 30.9.2018 for fulfilling his promises, as mentioned in letter dated 21.11.2017. On 19.3.2018, the opposite parties sent an e-mail to the father of the complainant, admitting therein that due to temporary cash flow issues, the assured return could not be credited to the account of the complainant. On 30.6.2018, the father of the complainant sent an e-mail to the opposite parties regarding non-issue of assured return cheques. On 9.11.2018, the complainant exercised his option, in view of offer made by the opposite parties, vide letter dated 21.11.2017. On 6.7.2018, GMADA, S.A.S. Nagar replied to ‘C & C Mohali Junction Buyer Association’, stating that it had already issued termination notice to the opposite parties for non-completion of the project. The aforesaid act and conduct of the opposite parties amount to deficiency in service and unfair trade practice. Hence, the present complaint.
Defence of the Opposite Parties
3. Upon notice, the opposite parties appeared and filed joint reply to the complaint. Mr. K.S. Dhillon, Advocate also appeared on behalf of IRP and filed his Power of Attorney.
4. The opposite parties, in their reply, raised preliminary objections that this Commission has no pecuniary jurisdiction to entertain and decide the complaint, as the value of entire claim raised in the complaint is less than Rs. 20 lac. The complainant does not fall under the definition of ‘consumer’, as defined in the Act, as he purchased the unit, in question, for commercial purpose and not for self-employment. The complainant has merely stated that the unit was booked for earning livelihood for complainant No. 2, whereas there is no complainant No. 2 in the complaint. The complainant is already earning more than good and he has demanded assured return of Rs. 13,963 on his investment. In the application form, the complainant has stated his profession as doctor and he is a Non-Resident Indian. Thus, he is excluded from the definition of ‘consumer’. Due to the ongoing slump in the real estate market, the complainant is no longer interested in retaining the unit, in question. Thus, the unit, in question, has been booked by the complainant just for commercial purpose. The complainant has suppressed material facts and has made contradictory pleas and as per clause 1.15 of the Letter of Allotment, 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. 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 construction, nor there was any binding obligation upon the opposite parties to complete the space within 48 months, but the same was likely to be completed within that period, that too subject to force majeure circumstances mentioned in Clause 1.3.3 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 6.2.2009. A Concession Agreement for developing said project was duly executed on 15.4.2009 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 27.1.2010, 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 4.4.2011, when the revised 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 is further pleaded that owing to heavy rains in the intervening night and early morning of 6/7.9.2011, 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 2.7.2012. Status report dated 3.10.2011 issued by renowned structural engineering firm Mehro Consultants proves that the said collapse was due to exceptional circumstance of heavy rains which caused accidental sliding of earth and slushing of earth filing as also due to water pressure from below. It is further pleaded that in June, 2012, the Hon’ble 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 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 parties No. 3 & 4 have been wrongly arrayed as parties in the complaint, as no specific role has been attributed to them. Thus, the complaint is liable to be dismissed against opposite parties No. 3 & 4. It was further pleaded that the opposite parties do not fall under the definition of ‘promoter’ and 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. It is further pleaded that the Environmental Clearance was granted to the opposite parties, vide letter dated 29.10.2009 and NOC from Punjab Pollution Control Board was granted vide letter dated 9.4.2010. NOC for withdrawal of ground water was issued by Central Ground Water Authority, Ministry of Resources, Government of India, vide letter dated 6.7.2009. The requisite layout plan/design of the project, in question, was approved by GMADA, vide letter dated 27.1.2010 and later on the revised plan/design submitted on the directions of the then Hon’ble Deputy Chief Minister, Punjab was also approved by GMADA, vide letter dated 4.4.2011. The opposite parties are also having No Objection Certificate for release of electricity connection by PSPCL granted, vide letter dated 3.11.2016. On merits, similar pleas, as raised in preliminary objections, were reiterated. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
Evidence of the Parties
5. To prove his claim, the complainant filed affidavit of his attorney, along with copies of documents i.e. General Power of Attorney Ex.C-1, Brochure Ex.C-2, payment receipts Ex.C-3 and Ex.C4, allotment letter dated 23.4.2012 Ex.C-5, letter dated 21.11.2017 Ex.C-6, letter dated 6.6.2018 Ex.C-7, e-mails Ex.C-8 to Ex.C-10 and letter dated 6.7.2018 Ex.C-11.
6. The opposite parties, in support of their defence, filed self attested affidavit of Sh. Arunav Pankaj, Authorized Representative, along with copies of documents i.e. resolution dated 5.6.2018 Annexure OP-1, application dated 25.12.2011 for allotment containing name of Sales Organizer Jaspreet Singh Annexure OP-2, Notice of Award dated 6.2.2009 Annexure OP-3, Concession Agreement dated 15.4.2009 Annexure OP-4, Lease Agreement dated 13.8.2009 Annexure OP-5, letter dated 27.1.2010 issued by GMADA Annexure OP-6, letter dated 29.12.2010 issued by GMADA Annexure OP-7, letter dated 4.4.2011 Annexure OP-8, letter dated 2.7.2012 issued by Government of India, Department of Meteorological Department Annexure OP-9, status report dated 3.10.2011 issued by Mehro Consultants Annexure OP-10, newspaper reports Mark OP/A and Marl OP/B (colly.), Compliance Certificate Annexure OP-11, Environmental Clearance dated 29.10.2009 Annexure OP-12, NOC dated 9.4.2010 issued by Punjab Pollution Control Board Annexure OP-13, NOC dated 6.7.2009 issued by Central Ground Water Authority Annexure OP-14, NOC dated 3.11.2015 issued by PSPCL Annexure OP-15, letter dated 12.6.2018 issued by GMADA Annexure OP-16 and Partial Occupation Certificate dated 15.12.2016 Annexure OP-17.
Contentions of the Parties
7. We have heard learned Counsel for the complainant and have gone through the written arguments submitted on behalf of the complainant and record carefully. None appeared on behalf of the opposite parties and IRP at the time of arguments, nor written arguments were submitted despite availing sufficient opportunities.
8. The written arguments submitted on behalf of the complainant are on the lines of averments made in the complaint. The sum and substance of oral and written arguments is 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 is a doctor by profession and wants to run his clinic therein. 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 been further contended that as per clause 1.3.3 of allotment letter, the construction of the unit was to be completed within 48 months from the compliance date, i.e. 16.12.2009, after obtaining necessary approvals and sanctions, subject to force majeure circumstances and reasons beyond the control of the Concessionaire/Licensor. The opposite parties received a sum of Rs. 18,08,800 from the complainant towards the price of the unit, in question, but they failed to complete the project, in question, within the said stipulated period, without disclosing any cogent reasons. No development was carried out on at the site. The complainant came to know from the newspapers that the agreement between the opposite parties and GMADA has been cancelled. 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.
Consideration of Contentions
9. We have given our thoughtful consideration to the contentions of the complainant.
10. So far as the plea of the opposite parties that the unit, in question, is a commercial space and the complainant had purchased the same with the sole purpose of 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, as he is a doctor by profession and wants to run his clinic therein. 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 selfemployment 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. Hon’ble National Commission in M/s. Ireo Fiveriver Pvt. Ltd. v. Surinder Kumar Singla & Others, I (2017) CPJ 448 (NC), 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 Krishna Estate Developers Pvt. Ltd. & Others, I (2016) CPJ 31 (NC)=Consumer Case No. 137 of 2010, decided on 12.2.2015 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. So far as the plea of the opposite parties that the complainant is a NRI, is concerned, there is no restriction on him to come back and earn his livelihood in the unit, in question. In this regard, reliance can be placed on a case reported as Reshma Bhagat v. Supertech Ltd., II (2016) CPJ 548 (NC)=2016 (I) CPR 428 (NC), wherein Hon’ble National Commission held that it cannot be a ‘rule of thumb’ that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. It does not mean that he/she cannot be consumer of the opposite parties. In view of the law laid down by the Hon’ble National Commission in the above said cases, the objection of the opposite parties is rejected, holding the complainant as consumer.
11. 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, plus additional charges is more than Rs. 20,00,000 and even the value of the entire relief claimed in the complaint is more than Rs. 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 & Ors. v. Ferrous Infrastructure Pvt. Ltd. and accordingly the objection of the opposite parties in this regard is also rejected.
12. The further objection of the opposite parties is that complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. In this respect, it is relevant to mention here that the Larger Bench of the Hon’ble National Commission, vide order dated 13.7.2017, passed in Consumer Complaint No. 701 of 2015 titled as Aftab Singh v. Emaar MGF Land Limited & Anr., III (2017) CPJ 270 (NC), held that an Arbitration Clause in the aforestated 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. v. Aftab Singh, I (2019) CPJ 5 (SC)=I (2019) SLT 102, filed against the said order of the Hon’ble National Commission has also been dismissed by the Apex Court, vide order dated 13.2.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.2.2018 was also dismissed by the Hon’ble 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.
13. Now, coming to merits of the case, at the outset, it is relevant to mention that the merits of the present complaint are squarely covered by the earlier verdicts given by this Commission in following cases:
(i) Consumer Complaint No. 343 of 2016, Sharanjeet Kaur v. C and C Towers Ltd. & Ors., decided on 2.6.2017;
(ii) Consumer Complaint No. 314 of 2017, Indu Laroia & Anr. v. C and C Towers Limited & Ors., decided on 7.11.2017;
(iii) Consumer Complaint No. 99 of 2018, Dharam Pal Nanda v. C & C Towers Ltd. & Ors., decided on 19.7.2018;
(iv) Consumer Complaint No. 825 of 2018, Harpreet Singh v. C & C Towers Ltd. & Ors., decided on 20.2.2019;
(v) Consumer Complaint No. 183 of 2019, Darshan Singh v. C & C Towers Ltd. & Ors., decided on 15.5.2019;
(vi) Consumer Complaint No. 930 of 2018, Ms. Kusum Sharma & Ors. v. C & C Towers Ltd. & Ors., decided on 4.4.2019;
(vii) Consumer Complaint No. 752 of 2019, Manoj Goyal & Anr. v. C. & C Towers Ltd. & Ors., decided on 19.12.2019; and
(viii) Consumer Complaint No. 761 of 2019, Mohammad Shahbaz & Ors. v. C & C Towers Ltd. & Ors., decided, vide order dated 8.1.2020.
So, we proceed to dispose of the present complaint, in view of the decisions given in the above noted cases.
14. Admittedly, vide letter of allotment dated 23.4.2013, Ex.C5, the complainant was allotted unit No. 27, Tower C, 16th Floor, measuring 238 sq.ft. (approximately) in the project of the opposite parties. As per Annexure-A (Payment Details and Payment Plan), the total consideration of the unit, in question, was Rs. 19,04,000 (@ Rs. 8,000 per sq.ft.), against which the complainant deposited a total sum of Rs. 18,08,800 with the opposite parties, as per receipts Ex.C-3 and Ex.C-4. As per clause 1.3.3 of the allotment letter, Ex.C-5, the construction of the unit was likely to be completed within 48 months from compliance date i.e. 16.12.2009, 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 15.12.2013. The complaint has been filed on 22.2.2019, i.e. after more than five 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.
15. 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 parties and has made the payment 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 period of more than eight years has 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.
16. It is also relevant to mention that the opposite parties wrote letter dated 21.11.2017, Ex.C-6, to the allottees, vide which they agreed to pay interest at the rate of 8.8% along with other applicable conditions due to delay in delivery of possession, to the allottees who want to stay invested in the project, in question. Further, vide letter dated 6.6.2018, Ex.C-7, the opposite parties admitted that their project was facing financial constraints at that time and, as such, they sought further extension of time till 30.9.2018 for making repayment as per my commitment made, vide letter dated 21.11.2017. Further, vide e-mail dated 19.3.2018, Ex.C-8, the opposite parties admitted that due to temporary cash flow issues, the assured return could not be credited to the account of the complainant. These letters/e-mail clearly prove that the opposite parties failed to complete the project within the stipulated time frame and they further sought extension for completing the construction timeline. 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, Annexure OP-12; NOC from Punjab Pollution Control Board was granted, vide letter dated 9.4.2010, Annexure OP-13; NOC from PSPCL was granted, vide letter dated 3.11.2016, Annexure 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, Annexure OP17, only for Block-A, Basement-1, Basement-2, Lower Ground Floor, Ground Floor & First Floor, whereas the unit of the complainant is situated on 16th Floor of Tower-C. However, in the absence of Completion Certificate as envisaged under Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), this Partial Completion Certificate is not sufficient to prove that the project is fully complete. In Consumer Complaint No. 825 of 2018, Harpreet Singh v. C & C Towers Limited & Ors., decided by this Commission, vide order dated 20.2.2019, along with bunch of other cases, it was observed as under:
“It is also relevant to mention that one another allottee sought information under RTI Act from GMADA. GMADA, vide letter dated 29.9.2016, Ex.C-7, 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 11.3.2016, Ex.C-9, 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. From the reply filed by opposite party No. 4 in Consumer Complaint No. 831 of 2018 (given in the later part of the order) also, it stands proved that 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 4.4.2016, but it sought extension of time in completing the project, which is still under consideration of the authorities.”
The opposite parties have produced on record letter dated 12.6.2018, Annexure OP-16, issued by GMADA, in which clarification was given that no licence was granted by GAMDA to the opposite parties and on instructions of Punjab Government, PIDB issued Notice of Award in favour of the Company on 6.2.2009, allowing it to raise construction in the project, as per approved designs by the GMADA only. Be that as it may, 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.
17. The opposite parties further contended that opposite parties No. 3 & 4 have been wrongly arrayed, as no specific role has been attributed to them and, therefore, the complaint is liable to be dismissed against them. In this respect, it is relevant to mention that opposite parties No. 3 & 4 are the Chairman/Chief General Manager of opposite parties No. 1 & 2-Company and are responsible for the day to day affairs of the said Company. Thus, it cannot be said that they have been wrongly impleaded in the complaint.
18. 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 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.
19. 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.
20. 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.
21. 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.”
22. 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 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 prin
Please Login To View The Full Judgment!
ciple 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. 23. In view of our above discussion, the opposite parties are liable to deliver actual and physical possession of the unit, in question, complete in all respects, with Completion and Occupation Certificates issued by the competent authorities and execute the Sale/Conveyance Deed in favour of the complainant, subject to payment of balance sale price, without any interest or penalty. 24. As per Annexure A1 of allotment letter, Ex.C-5, the opposite parties agreed to pay assured return at the rate of 11% per annum on the amount of Rs. 5,400 per sq.ft. (upfront licence fee) till offer of possession by way of account payee cheques. It has been admitted by the complainant in Para-7 of the complaint that the assured return at the rate of Rs. 13,963 per month has been paid by the opposite parties from March, 2012 to July, 2017; totaling Rs. 8,11,635, after deducting TDS of Rs. 89,344, but they have not paid the assured return from August, 2017 till the date of filing of the complaint. This fact has also not been denied by the opposite parties in their reply. Since the possession has not yet been delivered, so the opposite parties are liable to pay the agreed assured return to the complainant from August, 2017 till delivery of possession of the unit, in question, in the manner as discussed above. Besides this, the complainant is also entitled to suitable litigation costs and other expenses. 25. Accordingly, the complaint is partly allowed and following directions are issued to the opposite parties: (i) to deliver actual and physical possession of the unit, in question, to the complainants, complete in all respects, along with agreed facilities and Completion and Occupation Certificates issued by the competent authorities and execute the Sale/Conveyance Deed in favour of the complainant, subject to payment of balance sale price, without any interest or penalty; (ii) to pay the agreed assured return to the complainant from August, 2017 till delivery of possession of the unit, in question, as per terms and conditions of allotment letter, Ex.C-5, in the manner as ordered above; (iii) to pay Rs. 15,000 (Rupees Fifteen Thousand only), as litigation costs and other expenses. 26. The compliance of this part of the order shall be made by the opposite parties within a period of 60 days from the receipt of certified copy of the order; failing which the complainants shall be entitled to the alternative relief as under: (i) refund of the amount deposited by the complainant i.e. Rs. 18,08,800 (Rupees Eighteen Lac Eight Thousand and Eight Hundred only), along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same 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. (ii) It is made clear that the amount of assured return paid by the opposite parties shall be adjusted. (ii) to pay Rs. 15,000 (Rupees Fifteen Thousand only), as litigation costs and other expenses. 27. The compliance of this part of the order shall be made by the opposite parties within a period of 30 days after the expiry of above said period of 60 days. 28. The complaint could not be decided within the statutory period due to heavy pendency of Court cases and the pandemic of COVID-19. Complaint partly allowed.