Rajesh K. Arya, Member1. The facts, in brief, are that in May 2012, the complainant approached the opposite parties for a residential plot of size 200 sq. Yards in their project namely €˜yellow Stone Landmark Infocity€™ (now known as €˜Aeropolis City), at Sector 66-A, Mohali being developed by opposite party No.2.The basic sale price of the plot, in question, was Rs.76,80,000/-. At the time of booking, he was assured that project is duly approved and possession of the plot, in question, would be handed over within 18 months of the agreement and the agreement would be signed within two months. The complainant, in all, paid an amount of Rs.44,84,000/- up-to 11.08.2014. In the year 2016, he personally visited the site office of the opposite parties and enquired for development of the project and asked for possession of the plot but the opposite parties did not give any satisfactory reply. Rather, he was shocked to find that there is no development on the site and there is no hope of delivery of possession in near future. Vide publication dated 19.05.2018 and certificate dated 11.04.2018, the opposite parties arbitrarily changed the name of the project from €˜Yellowstone Landmark Infocity€™ to €˜Aeropolis City€™. It was further stated that the opposite parties have neither offered or handed over the possession of the flat nor refunded the amount to the complainant. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. Feeling aggrieved, the complainant filed this complaint seeking possession of the plot immediately or in alternative, to refund the whole amount alongwith interest @12% p.a. alongwith Rs.5 Lakhs and Rs.55,000/- towards compensation and litigation expenses. However, in his written arguments, the complainant prayed for alternate prayer of refund with interest as the opposite parties are not in a position to hand over the possession.2. In their reply filed by way of affidavit, the opposite parties raised certain preliminary objections to the effect that no cause of action has accrued to the complainant for filing this complaint; that the complaint is not maintainable as the project has been registered with RERA; that the plot, in question, purchased by the complainant is solely for commercial purpose and as such, he is not consumer under the provisions of Section 2(1)(d) of Consumer Protection Act, 1986 (in short €˜C.P.Act) and that the complaint filed is hopelessly time barred as there is a delay of five years in filing the same.3. However, on merits, while admitting the factual matrix of the case, it was denied that the complainant made payment of Rs.44,84,000/- as he has not produced any cogent evidence to prove the alleged payments. It was further stated that the opposite parties - Companies invested in the State of Punjab under the Industrial Policy 2003 of the then Government of Punjab on account of various subsidies and exemptions. Subsequently, the Government of Punjab took a U-turn by virtue of notification whereby the mega project was brought under the control of Department of Punjab Urban and Housing Development, due to which, the exemptions and subsidies under Industrial Policy 2003 were no more available to the opposite parties. It was further stated that under those circumstances, the opposite parties had to bear huge financial burden resulting into financial crunch and almost stalling the development in the project. It was further stated that due to non-payment of the amounts by other purchasers like the complainant and due to obstacles created by Government of Punjab and its agencies and further to challenge the demand for payment of External Development Charges and sought refund of Rs.11,82,47,000/- paid by them in lieu of EDC and cess thereon besides refund of Rs.7,09,23,000/- paid towards license fee, opposite party No.1 filed Civil Writ Petition No.5213 of 2015 before Hon€™ble Punjab and Haryana High Court, which vide its judgment dated 16.12.2017 observed that the opposite parties faced financial crunch. It was further stated that due to these reasons, the opposite parties could not complete the development and hand over the possession of the built up units due to paucity of funds on account of delayed permissions and obstructions by government and delayed/non-payment of instalments by the allottees. It was further stated that the Hon€™ble High Court directed the Principal Secretary of Punjab, Department of Housing and Urban Development to consider the case of the opposite parties for granting further extension for a reasonable period of not less than 2 years, as such, the complainant is making false allegations without any basis against the opposite parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into unfair trade practice.4. The parties led evidence in support of their case. It may be stated here that though Sh. Sunit K. Chauhan, Advocate had been appearing on behalf of the opposite parties but on the date of arguments i.e. 28.01.2021 and also on 09.11.2020, none appeared on behalf of the opposite parties.5. We have heard the Counsel for the complainant and have gone through the evidence and record of the case, carefully and the written arguments filed by the complainant.6. So far as the objection raised that the complaint is not maintainable before this Commission as the jurisdiction vests with RERA with whom the project has been registered is concerned, the same does not merit acceptance, in view of the ratio of law laid down by the Hon€™ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-€œ24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called €œconsumers€ within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.* 27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- €œThe proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. *(See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking * Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint€€In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Since, this complaint involves the consumer dispute and the same is maintainable before this Commission, as such, objection taken in this regard by the opposite parties stands rejected.7. As regards the next objection taken by the opposite parties to the effect that the complainant did not fall within the definition of €˜consumer€™ as he purchased the plot, in question, for commercial purpose, it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite parties to establish that the complainant has purchased the plot, in question, to indulge in commercial activity as was held by the Hon€™ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since it failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act. In this view of the matter, objection taken in this regard stands rejected.8. There is no dispute as regards the registration made by the complainant for purchase of residential plot of 200 sq. Yards in the project of the opposite parties i.e. YellowStone Landmark Infocity at Sector 66, SAS Nagar, Mohali. However, the opposite parties have specifically denied receipt of Rs.44,84,000/- from the complainant. Annexure C-1, which is receipt dated 25.07.2012, clearly establishes that the opposite parties received an amount of Rs.33,90,000/- from the complainant up-to 12.06.2012 & Rs.1,34,000/- vide cheque No.365938 dated 22.06.2012 drawn on Axis Bank. They further raised a demand of Rs.9,60,000/- vide letter dated 06.06.2014, Annexure C-2, which the complainant duly paid vide receipt dated 11.08.2014, Annexure C-4, issued by the opposite parties. Thus, it is very much proved on record that in all, the opposite parties received an amount of Rs.44,84,000/- from the complainant. As such, their denial qua receipt of Rs.44,84,000/- is not sustainable in the eyes of law.9. In the instant case, admittedly, the plot, in question, was booked by the complainant on 10.05.2012 and he paid substantial amount of Rs.44,84,000/- up to 11.08.2014 to the opposite parties. It is the case of the complainant that despite assurance given by the opposite parties that the agreement would be signed within two months and possession of the plot would be handed over within 18 months of the agreement, no agreement has been executed till date, what to talk of possession.10. Now the question, which arises for consideration of this Commission is as to what would be the reasonable period for handing over of actual physical possession of the plot, in question. It may be stated here that it is settled law that in the cases, where no agreement has been executed, a reasonable period has to be taken into consideration for delivering possession of the plot/unit to the allottee. What should be the reasonable period in such a case, fell for determination before the Hon€™ble Supreme Court of India in the case titled as M/s. Fortune Infrastructure Appellant(s) (Now Known as M/s. Hicon Infrastructure) & anr. Versus Trevor Dlima & Ors. Civil Appellate Jurisdiction Civil Appeal No(S). 3533-3534 of 2017, decided on 12.03.2018, wherein it was held that when there is no delivery period stipulated, a time period of 3 years would be reasonable for completion of the contract. Similar view had been taken by the Hon€™ble National Commission in M/s. Ansal Housing & Construction Ltd. & 2 Ors. Vs. Jotinder Singh, First Appeal No. 870 of 2015 decided on 10 Nov 2016. Since in the present case also, Plot Buyers Agreement has not been executed, as such a reasonable period of three years from the date of booking if taken into consideration, for completing the development of the project and handing over possession of the plot to the complainant, will meet the ends of justice. In the present case, since booking of the plot was made on 10.05.2012, as such, the possession of the plot, in question, was to be delivered by the opposite parties up to 10.05.2015. Now it is 2021 and still he is empty handed despite the fact that substantial amount of Rs.44,84,000/- stood paid by him to the opposite parties. Still the opposite parties are not sure, as to by which date, development will be completed and possession of the plot in question can be delivered to the complainant. The complainant cannot be made to wait for an indefinite period at the whims and fancies of the opposite parties.11. As regards the plea of the opposite parties that since the Punjab Govt. withdrew the subsidies and exemptions provided under the Industrial Policy, 2003, as such, the Company faced financial burden which affected the project, it may be stated here that if there was some dispute between the Company and the State of Punjab with regard to payment of some statutory amount like external development charges etc. or withdrawal of some subsidies, in respect of the project, in question, resulting into filing of the said writ petition before the Hon€™ble Punjab and Haryana High Court, the complainant cannot be made to suffer for the same. It is not the case of the opposite parties that they were to develop the plots, in the first instance, by way of arranging funds from their own sources/pocket and thereafter were to sell the same on future payment basis to be made by the customers including the complainant. Once, the opposite parties have received substantial amount from the complainant and other buyers, they cannot be heard to say that the Company suffered financial burden due to shortage of funds. As such, plea taken in this regard is rejected.12. As far as plea taken by the opposite parties to the effect that delay in completing the project took place, as the Competent Authorities delayed in granting approval/sanctions in respect of the said project, it may be stated here that if the said approvals/sanctions were allegedly not granted or delayed, then the opposite parties should not have launched the project and sold the units/plots therein. From this candid admission of the Company, it has clearly come out that the project, in question, was launched and units/plots were sold therein to the general public without obtaining necessary approvals/sanctions, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice. Similar view was expressed by the Hon€™ble National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016.13. Not only as above, there was a complete violation of Section 6 (1) of the Punjab Apartment and Property Regulation Act, 1995 (PAPR Act), which lays duty on a builder to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -€œ6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906);Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.(2) xxxxxxxxxxxxxxxx€€€€€...(3) xxxxxxxxxxxxxxxxx€€€€€€.€In the present case, it is evident that the opposite parties failed to provide agreement for signatures of the complainant till date. The opposite parties were interested only in raising demands from the complainant. They were duty bound under law to execute the agreement and to get it registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated at length. The opposite parties were deficient in providing service and adopted unfair trade practice on this count. In the absence of any development at the site, the right vests with the complainant not to pay the further instalments towards the sale consideration of the plot, in question, in view of principle of law laid down by the Hon€™ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon€™ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.14. Under above circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period for delivery of actual physical possession of the plot in question. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project by the promised date or when there is no agreement executed between the parties, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our this view is supported by the observations made by the Hon€™ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. This view taken is further supported by the principle of law laid down by the Hon€™ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D€™ Lima & Ors. (2018) 5 SCC 442. In the facts and circumstances of the present case, we are of the considered opinion that ordering refund of the amount paid alongwith suitable interest will meet the ends of justice.15. In view of above, the objection raised by the opposite parties that no cause of action had accrued in favour of the complainant for filing this complaint stands rejected.16. In our considered opinion, the complainant is, held entitled to get refund of the amount of Rs.44,84,000/- alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon€™ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Under similar circumstances, the Hon€™ble National Commission in Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23rd Dec 2019, also ordered refund of the amount paid, alongwith interest @12% p.a.17. As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been held above that actual physical possession of the plot in question was never offered or delivered to the complainant and further also the amount paid by him has also not been refunded and retained illegally by the opposite parties, as such, there is a continuing cause of action in his favo
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ur in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer and also in Ansal Housing And Construction Ltd. Vs. Tulika Gupta & Anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, wherein it was observed by the Hon€™ble National Commission that €œ€ordinarily if the possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded€.€.. As such, objection taken in this regard is rejected.18. For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-i. To refund the amount of Rs.44,84,000/- alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.ii. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.19. However, it is made clear that HDFC Ltd./or any other financial institution, from whom, the complainant has availed housing loan for making payment towards price of the said plot, shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.20. Certified Copies of this order be sent to the parties, free of charge.21. The file be consigned to Record Room, after completion.