Chandigarh

StateCommission

CC/171/2017

Mr. Rajinder Kumar Rana - Complainant(s)

Versus

M/s Manohar Infrastructure and Constructions Private Limited - Opp.Party(s)

Deepak Aggarwal, Adv.

07 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	103 of 2017
Date of Institution	:	02.02.2017
Date of Decision	:	7-Aug-17

 

Harjit Kaur wife of Sh. Rupinder Singh resident of House No. 3, Prabhu Simran Kendra, Chhoti Jawedi, Ludhiana, Punjab

 

……Complainant

V e r s u s

Manohar Infrastructure & Constructions Private Limited through its Managing Director, SCO No. 139-141, Sector-17C, First Floor,

Chandigarh

 

              ....Opposite Party

Argued by:       Sh.Sanjeev Gupta, Advocate for the complainant.

                        Sh.I.P. Singh, Advocate for the opposite party.

=====================================================

Complaint case No.	:	179 of 2017
Date of Institution	:	27.02.2017
Date of Decision	:	7-Aug-17

 

Vinay Kumar Verma son of Late Sh. Kanwar Chand Verma resident of H. No. 23P, Sector-7, Urban Estate, Ambala City, District Ambala, Haryana.

.……Complainant

V e r s u s

M/s Manohar Infrastructure and Constructions Private Limited, Regd. Office- Manohar Campus, SCO-139-141, Level-1, Sector-17-C, through its Managing Director

              ....Opposite Party

Argued by:       Sh.Karan Nehra and Sh.Ravi Nayak, Advocates for   the complainant.

                        Sh.I.P. Singh, Advocate for the opposite party.

 

=====================================================

Complaint case No.	:	105 of 2017
Date of Institution	:	03.02.2017
Date of Decision	:	7-Aug-17

 

Jagdish Chander son of Sh. Mam Raj, aged 55 years, resident of VPO Old Nilokheri, District Karnal, Haryana.

……Complainant

V e r s u s

M/s Manohar Infrastructure and Constructions Private Limited, Regd. Office- Manohar Campus, SCO-139-141, Level-1, Sector-17-C, through its Managing Director.            

 ....Opposite Party

Argued by:Sh.Karan Nehra, Advocate for the complainant.

                  Sh.I.P. Singh, Advocate for the opposite party.

 

======================================================

Complaint case No.	:	108 of 2017
Date of Institution	:	06.02.2017
Date of Decision	:	7-Aug-17

 

Pradeep Bansal son of Sh. C B Bansal r/o House No 110, Sector-16, Panchkula, Haryana.

.……Complainant

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Ltd., SCO 139-141, Sector-17C, Chandigarh through its Managing Director/ Authorized Signatory.

              ....Opposite Party

Argued by:       Sh.Sanjeev Sharma, Advocate for the complainant.

                        Sh.I.P. Singh, Advocate for the opposite party.

 

=====================================================

Complaint case No.	:	109 of 2017
Date of Institution	:	06.02.2017
Date of Decision	:	7-Aug-17

 

Ranjit Singh S/o Pritam Singh, H.No 4727, Darshan Vihar, Sector 68, Mohali, Punjab.

 

……Complainant

V e r s u s

Manohar Infrastructure & Constructions Pvt. Ltd, Manohar Campus, SCO 139-141, Sector 17-C, Chandigarh 160017 through Managing Director/Director/Secretary/Authorized Signatory,

 

              ....Opposite Party

Argued by:Sh.Munish Goel, Advocate for the complainant.

                  Sh.I.P. Singh, Advocate for the opposite party.

 

=====================================================

Complaint case No.	:	110 of 2017
Date of Institution	:	06.02.2017
Date of Decision	:	7-Aug-17

 

Mrs. Sunita Rishi wife of Mr. Ravi Dutt residence of House No.772, Sector 49- A, RCS Enclave, Chandigarh.

……Complainant

V e r s u s

M/s Manohar Infrastructure and Construction Pvt. Limited, SCO 139-141, Sector 17-C, Chandigarh, through its Managing Director.

              ....Opposite Party

Argued by:Sh.Abhishek Bhateja, Advocate for the complainant.

                  Sh.I.P. Singh, Advocate for the opposite party.

 

=====================================================

Complaint case No.	:	171 of 2017
Date of Institution	:	23.02.2017
Date of Decision	:	7-Aug-17

 

Mr. Rajinder Kumar Rana son of Sh.Om Parkash Rana, resident of House No.3785, Sector 22-D, Chandigarh.

……Complainant

V e r s u s

 

M/s Manohar Infrastructure and Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Chairman/Managing Director/Director/Authorized Signatory. 

              ....Opposite Party

Argued by:Sh.Deepak Aggarwal, Advocate for the complainant.

                  Sh.I.P. Singh, Advocate for the opposite party.

 

======================================================

Complaint case No.	:	241 of 2017
Date of Institution	:	21.03.2017
Date of Decision	:	7-Aug-17

 

Sahil Vasisht S/o Sh.Naresh Vasisht, R/o H.No.87, Sector 28-A, Chandigarh.

……Complainant

V e r s u s

 

M/s Manohar Infrastructure and Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory. 

              ....Opposite Party

Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.

                  Sh.I.P. Singh, Advocate for the opposite party.

======================================================

Complaint case No.	:	257 of 2017
Date of Institution	:	27.03.2017
Date of Decision	:	7-Aug-17

 

1. Jatinder Kaur wife of Sh.Harinder Pal Singh.
2. Harinder Pal Singh son of Sh.Avtar Singh.

Both residents of House No.774, Phase-4, Mohali, 160055.

……Complainants

V e r s u s

 

Manohar Infrastructure and Constructions Pvt. Limited, through its Managing Director, SCO No.139-141, Sector 17-C, First Floor, Chandigarh. 

              ....Opposite Party

Argued by: Sh.Sanjeev Gupta, Advocate for the complainants.

                  Sh.I.P. Singh, Advocate for the opposite party.

======================================================

Complaint case No.	:	268 of 2017
Date of Institution	:	30.03.2017
Date of Decision	:	7-Aug-17

 

Mrs.Renu Patial w/o Col. Jaideep Singh Patial and d/o Dhrub Chand Rana, resident of House No.5653, Modern Housing Duplex, Manimajra, U.T. Chandigarh, through her father, Dhrub Chand Rana son of Late Sh.Arjun Singh Dhadwal, resident of House No.5653, Modern Housing Duplex, Manimajra, U.T. Chandigarh, GPA.

……Complainant

V e r s u s

 

M/s Manohar Infrastructure and Constructions Pvt. Limited, through its Managing Director, SCO No.139-141, 1^st Floor, Sector 17-C, Chandigarh. 

              ....Opposite Party

Argued by: Sh.Manvinder Singh Sidhu, Advocate for the  complainant.

                     Sh.I.P. Singh, Advocate for the opposite party.

======================================================

Complaint case No.	:	269 of 2017
Date of Institution	:	30.03.2017
Date of Decision	:	7-Aug-17

 

Vinay Dhadwal son of Sh.D.C. Rana, resident of House No.5653, Modern Housing Duplex, Manimajra, U.T. Chandigarh

……Complainant

V e r s u s

 

M/s Manohar Infrastructure and Constructions Pvt. Limited, through its Managing Director, SCO No.139-141, 1^st Floor, Sector 17-C, Chandigarh. 

              ....Opposite Party

Argued by: Sh.Manvinder Singh Sidhu, Advocate for the complainant.

                       Sh.I.P. Singh, Advocate for the opposite party.

======================================================

Complaints under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid eleven (11) consumer complaints, wherein the complainants have sought refund of the amount, paid towards purchase of residential plots/units. In consumer complaints bearing nos.103 of 2017, 179 of 2017, 105 of 2017, 108 of 2017, 109 of 2017, 110 of 2017, and 171 of 2017 arguments were heard on 20.07.2017 and the same were reserved for orders. Arguments, in the remaining consumer complaints bearing nos. 241 of 2017, 257 of 2017, 268 of 2017 and 269 of 2017 were heard on 26.07.2017 and the same were also reserved for orders. Since, the issues involved in all the 11 complaints, referred to above, except minor variations, here and there, of law and facts are the same, as such, we are of the considered opinion that all the complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no.103 of 2017, titled as Harjit Kaur Vs. Manohar Infrastructure and Constructions Private Limited. The complainant for her personal use, purchased one residential plot, measuring 250 square yards @Rs.18,000/- per square yards, in resale from one Seema Rani, original allottee, in a project, launched by the opposite party, namely ‘Palm Garden’ situated at Mullanpur, New Chandigarh, Punjab, vide application acknowledgment dated 04.02.2013 Annexure C-3. Total sale consideration of the plot was fixed at Rs.45 lacs.  It was stated that besides as above, the allottee was also required to pay amount towards external development charges and preferential location charges. It was stated that amount to the extent of 30% of sale price i.e. Rs.13,50,000/-, which had been paid by Seema Rani, original allottee, to the opposite party, was repaid by the complainant to her. The plot was endorsed in her name. In this manner, the complainant became purchaser of the said plot. It was further stated that when copy of the application aforesaid, was provided to the complainant, she was shocked to see that amount towards IDC was also demanded from her. Request made by the complainant for waiving of the said illegal demand, did not yield any result.
3.         Thereafter, on demand raised by the opposite party, the complainant paid another amount of Rs.9 lacs, vide cheque dated 21.02.2014, towards price of the plot. It is specific case of the complainant that when making payment of the said amount, assurance was given by the opposite party that possession of the fully developed plot, in the said project, will be handed over by December 2014. Thereafter, with a hope to get possession, further payment of Rs.6,75,500/- was made by the complainant, vide cheque dated 15.07.2014. However, despite making payment of huge amount, referred to above, possession of the plot was not offered to the complainant, in December 2014, as promised.
4.         The complainant visited the office of the opposite party, to know the date on which possession of the developed plot will be given. The opposite party failed to give any concrete reply. Rather, it was stated that on account of non-development, let the complainant be relocated in another part of mega housing project, named as ‘Palm Springs’. Accordingly, she was relocated, on the promise that plot in the relocated project, will be delivered within 6 months. In the process of relocation, new application dated 15.10.2015 Annexure C-8 was got signed from the complainant. Further amount of Rs.5 lacs, as demanded by the opposite party, towards relocated plot was paid by the complainant vide cheque dated 20.10.2015. In the process of relocation, enhanced amount towards preferential location charges @Rs.3800/- per square yard, was demanded from the complainant, by the opposite party, vide letter dated 18.12.2015 Annexure C-11. Even then neither allotment letter was issued nor Buyer’s Agreement was sent for signatures of the complainant. Furthermore, without making offer of possession of the plot, the opposite party started making demand of further amount.
5.         By making reference to the facts mentioned above, it is specifically alleged that there was complete violation of the provisions of Section 6 of the Punjab Apartment and Property Regulation Act, 1995  (in short the PAPRA), which prohibits sale of any plot etc., in a project site, before necessary permissions are available in the hands of the project proponent. As per provisions of the PAPRA, in no case, more than 25% of the sale consideration can be received by the project proponent, before signing the Buyer’s Agreement.
6.         It was further stated that assurance given by the opposite party, in the year 2011, when project was launched that it had all necessary permissions, was false. It was further stated that the project in question was launched and sold, before obtaining all necessary approvals/sanctions, from the Competent Authorities. It was averred that the complainant came to know about a public notice published through GMADA on 18.08.2012, Annexure C-13, in Hindustan Times newspaper, wherein it was intimated to the general public that the opposite party was allegedly booking/selling the plots in the said project, unauthorizedly. It was further stated that the project is not approved by the Competent Authority. It was stated that under above circumstances, the complainant served legal notice dated 15.11.2016 Annexure C-14, requesting the opposite party to refund the amount paid to the extent of Rs.34,25,000/- alongwith interest. The opposite party vide letter dated 25.11.2016 Annexure C-15, directed the complainant to visit its office for completing the formalities required for refund. It was further stated that despite doing the needful, the opposite party refused to refund the amount paid and on the other hand, made demand of further amount towards remaining price of the plot, to execute buyer’s agreement.
7.         By stating as above, the present complaint has been filed with a prayer to issue directions to the opposite party, to refund the amount paid, to the extent of Rs.34,25,000/- alongwith interest; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.50,000/-.
8.         Upon notice, reply was filed by the opposite party, wherein, numerous objections were taken by it, like since complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature. Only Civil Court has jurisdiction to entertain and decide this complaint. It was asserted that the unit, in question, was purchased for future gain, as such, the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.  Territorial jurisdiction of this Commission was disputed. It was pleaded that in view of applicability of Real Estate Regulation Act, 2016, this Commission has no jurisdiction to entertain any dispute pertaining to allotment of plots etc.
9.         On merits, it was admitted that the plot was sold in favour of the complainant, in resale, in a project of the opposite party known as ‘Palm Garden’, in the manner, referred to above. It was stated that thereafter, she surrendered her plot in the said project and opted to get another plot, which was allotted to her in ‘Palm Springs’. It was stated that allotment letter Annexure O-5 in respect of the plot, in question, was issued on 16.02.2017. She was asked to come and sign the Buyer’s Agreement and also to make payment of the remaining amount, however, she failed to do so. Even then, plot was allotted to her, vide the letter mentioned above. To say that there was lot of development in the project, photographs were placed on record.
10.         It was stated that as per terms and conditions, the opposite party moved application dated 12.09.2011 to the Competent Authorities, so that their project can be exempted from the provisions of PAPRA and also other necessary clearances could be obtained. However, the same was delayed by the Competent Authorities, on account of political and business rivalry. It was stated that the project was approved on 22.03.2013 Formal agreement was signed with the Government on 14.06.2013. Thereafter, some more land was added to the project, for which completion period was given upto 13.06.2018. It was stated that exemption from the applicability of provisions of the PAPRA already stood granted by the Government concerned, in favour of the opposite party on 25.01.2017. In view of above, all acts of the opposite party in getting money deposited against expression of interest, from the purchasers stood justified. The exemption granted will relate back to the date, when application was moved for sanction, to launch the project, in the year 2011. During arguments also, it was contended by Counsel for the opposite party that irregularity, if any, in accepting the expression of interest to purchase the land, has no adverse effect on the project launched by the opposite party. It was averred that the opposite party is trying to complete the project, as early as possible.
11.         It was stated that delay in delivery of possession of plots occurred on account of shortage of building material and ban on mining by the Govt., which could be termed as force majeure circumstances, as such, time cannot be taken to be essence of contract. It was further stated that claim of the complainant granting interest @18% p.a. is totally unjustified. Even for fixed deposits, in the banks, rate of interest is very less. It was further stated that, as on today, the project stood approved by the Competent Authorities. It was also stated that huge amount has been invested by the opposite party for getting necessary clearances and in developing the site in dispute. It was pleaded that since the complainant failed to get register, transfer of the plot, with the office of Sub Registrar concerned, as such, the said transfer is not a valid transaction. It was averred that withdrawal from the purchase is malafide and it is open to the opposite party to forfeit upto 20% of the amount paid. It was pleaded that, as per the alleged notice, published by GMADA, booking of plots without sanction was stated to have been done by M/s Manohar Singh & Co., whereas, the name of the OP Company is M/s Manohar Infrastructure and Constructions Private Limited i.e. a separate legal entity.  It was stated that the complainant failed to submit original documents, as a result whereof, refund could not be made to her. It was stated that the complaint having no substance deserves dismissal.
12.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those contained in the written version of the opposite party.
13.         The parties led evidence, in support of their cases.
14.         We have heard the contesting parties and, have gone through the evidence and record of all the cases, carefully. 
15.         After giving our thoughtful consideration, to the contentions, advanced by Counsel for the parties and the evidence, on record, we are of the considered opinion, that all the complaints, referred to above, are liable to be partly allowed, for the reasons to be recorded hereinafter.

                There is no dispute that the complainant purchased one residential plot, measuring 250 square yards @Rs.18,000/- per square yards, in resale from one Seema Rani, original allottee, in a project, launched by the opposite party, namely ‘Palm Garden’ situated at Mullanpur, New Chandigarh, Punjab, vide application acknowledgment dated 04.02.2013 Annexure C-3, for total sale consideration of Rs.45 lacs.  It is also not disputed, that after its satisfaction, the opposite party, transferred the said plot, in favour of the complainant. Thereafter, on demand raised by the opposite party, the complainant paid another amount of Rs.9 lacs, vide cheque dated 21.02.2014 and Rs.6,75,500/- vide cheque dated 15.07.2014. There is no dispute that when this complaint was filed, the complainant had already paid an amount of Rs.34,25,000/-. It is also not seriously disputed that the complainant was relocated in another part of mega project, named as ‘Palm Springs’, vide document Annexure C-8 dated 15.10.2015, for which she paid an addition amount of Rs.5 lacs towards external development charges and internal development charges.

                It appears that there was no development in the project named “Palm Garden”, as a result whereof, the complainant was relocated in the project “Palm Greens”. Ultimately, after a huge delay, she was allotted plot bearing no.1013, measuring 250 square yards, vide letter dated 16.02.2017 Annexure O-5. It may be stated here that, there is nothing on record to show that by the time the plot was sold to the original allottee or even thereafter, when it was purchased by the complainant, in resale, before grant of exemption from the provisions of applicability of PAPRA, any permission was available with the opposite party, to sell the project.

                 Be that as it may, contention of Counsel for the complainant that the project, in question, was sold without any permission/sanction from the Competent Authorities and also violating the provisions of Section 6 of the PAPRA appears to be correct. The said provision reads thus:-

“6.(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 for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;”

 

16.         The pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that permission seeking exemption from the applicability of provisions of PAPRA has finally been granted only in this year (Jan. 2017), which cannot be said to have any retrospective effect. As such, it could very well be said that by selling the units without exemption, the opposite party violated the provisions of PAPRA, and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on its part.
17.         To get a plot allotted in the project named as ‘Palm Garden’, first payment was received by the opposite party on 31.10.2011. It is virtually proved on record that when the project was sold, not even a single permission was available with the opposite party. It is admitted in the written version that part of the project of the opposite party was approved much later, in the year March 2013. Formal Agreement was signed with the Govt. of Punjab on 14.06.2013. Thereafter, additional area was added and supplementary agreement was signed on 16.06.2016. Notification granting exemption from the applicability of the provisions of PAPRA was issued only on 25.01.2017. Perusal of the said notification makes it very clear that exemption given was conditional, as has been referred in para no.5 of the said notification. Besides other conditions, condition no.5 (iii to vii), reads thus:-

“(iii). The promoter shall deposit the entire amount in respect of the contribution to the Punjab Urban Development Fund, created under section 32 of the Punjab Apartment and Property Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their layout plan.

(iv). The promoter shall acquire the ownership of project land in its name including land under agreement to develop and land under agreement to sell. The plots falling under land proposed to be acquired if any through Govt. acquisition, plot through which revenue rasta or khali passes shall not be developed and sold till these pockets are acquired and ownership is transferred in the name of the Promoter.

(v)      The plots/land to which the access is proposed through the land to be acquired if any by the Government shall not be developed and sold till that land under the access is acquired and transferred in the name of the promoter and access is provided.

(vi)     The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control Board.

(vii)    Before starting the development of the proposed project promoter shall obtain environmental clearance from the Ministry of Environment and Forest Government of India as required under EIA notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution Control Board.”  

 

18.         It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. This contention of the complainant appears to be correct, when we look into the contents of letter dated 03.06.2016  (at page 84 of the file), issued by the State Level Environment Impact Assessment Authority, Punjab, issued in favour of the opposite party, whereby the application moved by it (opposite party) for obtaining environmental clearance under EIA Notification 2006, for the said project, was ordered to be treated as withdrawn and, thereafter, there is nothing on record to show that any application for obtaining the said environmental clearance was ever moved by the opposite  party, with the Competent Authority. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting ‘No Objection Certificate’ from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party.

                It was contended by Counsel for the opposite party that after issuance of notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the irregularities committed by it qua sale of plots in the year 2011, etc. stands rectified. It was specifically stated by Counsel for the opposite party that irregularity in accepting expression of interest for sale of the plot in the said project, will have no adverse effect.

                We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. As stated above, when the project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed or admitted irregularities made, cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Sukhvinder Singh Hayer Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Complaint case no.775 of 2016 decided on 23.03.2017 (02 connected cases), wherein it was observed as under:-

 

“It is specifically mentioned that before starting development of the proposed project, promoter was to obtain environmental clearance from the Ministry of Environment and Forest Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that such clearance was obtained by the opposite party. Further, it was also mentioned that requisite amount be paid towards Punjab Urban Development fund, within a period of 30 days, from the date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for getting No Objection Certificate from Punjab Pollution Control Board. No document exists on record, showing that such approval was obtained by the opposite party. Contention of Counsel for the opposite party that notification dated 25.01.2017 exempting applicability of many provisions of PAPRA qua mega project, the sale of plots in the year 2011 etc. stands rectified. We are not going to agree with the contention raised. There is nothing on record that the said notification is retrospective in nature. When project was sold, not even a single permission was available with the opposite party. The sale was made in contravention of the provisions of PAPRA and upon issuance of notification in the month of January 2017, violation committed cannot be rectified. Similar question qua this very project, came up for consideration before this Commission in Monika Vs. M/s Manohar Infrastructure and Construction Pvt. Limited, Complaint case no.251 of 2016 decided on 27.09.2016, wherein it was observed as under:-

“The pleadings of the parties indicate that when project was marketed and sold, not even a single permission was available with the project proponent/opposite party. There is a complete violation of the provisions of the PAPRA. It is an admitted case of the opposite party that application seeking exemption from the applicability of provisions of PAPRA is still pending under consideration, with the Authorities concerned. Unless exemption is granted, its violation would amount to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite party, in this complaint.

Qua a similar project launched by the opposite party in the same area, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, under similar circumstances, this Commission, while dismissing the said appeal, has observed as under:-

“The documents placed on record clearly show that the project was launched without getting any permission from the Competent Authorities. Detailed brochure was issued showing facilities to be made available in the project launched and its layout plan. It is also on record that when it came to the notice of GMADA that the plots/flats are being sold unauthorizedly by the appellant, it gave a notice in the newspaper ‘Hindustan Times’ dated 18.08.2012, which reads thus:-

                “PUBLIC NOTICE

This is for the information of one and all that it has come to the notice of the Competent Authority that one company named as M/s Manohar Singh & Co. is allegedly booking/selling plots in the Mullanpur- Siswan region near Chandigarh border in the State of Punjab. This is being intimated that the above said project is not approved by the State Government. The Competent Authority is initiating legal proceedings in this regard.

If anybody has booked or purchased any plot in the locality mentioned above he/she is advised to contact the undersigned along with documentary proof for further legal action against the said promoter. Further, while buying any plot in any locality falling under the jurisdiction of GMADA, all are advised to visit the website www.gmada.gov.in to verify if the colony/project is approved or not.

Chief Administrator

GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA Bhawan, Sector 62, SAS Nagar”.

 

It is specifically stated in the notice dated 18.08.2012 that the appellant was allegedly booking/selling the plots in Mullanpur, near Chandigarh Border, in the State of Punjab, unauthorizedly. It was further stated that the project is not approved by the Competent Authority and it (Competent Authority) is initiating legal proceedings against the project proponent for its activity. Above said notice makes it very clear that when the plot was sold on 13.04.2012, the project was not approved by the Competent Authorities. It is also so reflected in the details given by the appellant with this appeal, which is available at page 33 of the paper book. Reading of above said document, makes it very clear that the project was approved by the Government on 25.04.2013; Letter of Intent (LOI) was issued on 03.05.2013; Change of Land Use (CLU) certificate was granted on 31.03.2014; project was registered on 21.06.2014; No Objection Certificate by the District Forest Officer, SAS Nagar, Mohali, was issued on 14.07.2014; Zoning plan was approved by the Chief Town Planner, Punjab on 24.11.2015 and Detailed Project Report (DPR)/Service Plans were approved by the Chief Engineer, GMADA, Mohali, on 27.11.2015. As per established law, if the project proponent sells the project without obtaining necessary permissions or clear title of the acquired land, it would amount to adopting unfair trade practice. It was so said by the Hon’ble National Commission in Atul Maheshwari and ors. Vs. Yamuna Expressway Industrial Development Authority, II (2016) CPJ 623 (NC). Relevant portion of the said judgment reads thus:-

“OP should not have announced the scheme, until or unless they got clear title of the acquired land”.

 

Similar view was expressed by the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.756 of 2016, decided on 30.03.2016. In that case, when upholding the findings given by this Commission, that the project cannot be even marketed before getting approvals/sanctions, from the Competent Authorities, to launch it, it was observed by the National Commission, as under:-

 

 “We are unable to persuade ourselves to agree with the ld. counsel.  While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-

 

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

 

6.    We are in complete agreement with the view taken by the State Commission.  As noted above, the petitioners happen to be body corporate.  Before offering the farmhouses in the said project as Agent of Respondent No. 2, they must be aware about the status of the sanction for launch of the project.  Therefore, it is beyond one’s comprehension that the present Petitioner was not aware about the actual state of affairs for which only the developer could be held responsible.”

       

                In the present case also, there is nothing on record that when expression of interest/applications were invited to sell the said project, clear intimation was given to the intending purchasers that the project sold was in infancy stage and it will take years together before necessary permissions will be provided by the Competent Authorities.

19.         It was vehemently contended by Counsel for the opposite party that once exemption from the applicability of the provisions of PAPRA stood granted in the year January 2017, it will relate back to the date of launching of the project, and all irregularities stands rectified. To support above said contention, he has placed reliance on the ratio of judgment passed by the Hon’ble Supreme Court of India, titled as M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) R.C.R. (Civil) 130. We are not going to accept the arguments raised. It has already been held in Sukhvinder Singh Hayer` case (supra) that upon issuance of notification in the month of January 2017, granting exemption from the applicability of the provisions of PAPRA, violation committed prior thereto, cannot be rectified. To so say, in Sukhvinder Singh Hayer` case (supra), reliance was also placed upon the judgment passed by this Commission in Monika`s case (supra). The said finding was given in consonance with the findings of the National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another`s case (supra).

                As far as the reliance placed by Counsel for the opposite party on M/s Murudeshwara Ceramics` case (supra) is concerned, we have gone through the facts of the same very carefully and found that the same were altogether different from the facts of the present case. In the case before the Hon’ble Supreme Court of India, when interpreting the provisions of Section 109 of the Karnataka Land Reforms Act, 1961, it was stated that power of the Government to grant exemption with regard to the land, in any area from operation of some of the provisions of the Act, for using the said land for a particular purpose, are to be seen, not at the time of sale/purchase of the land in dispute, but at the time, when it was going to be put for the said use. It was noted that after sale of the land, in dispute, when it was going to be put for industrial use, exemption from the provisions of the said Act already stood granted. The position is altogether different; as in the present case, by indulging into selling the project without any sanctions in its hands, the opposite party has committed unfair trade practice, as defined in Section 2 (1) (c) (i) and (iii) of the CP Act.

20.         It is apparent on record that in the year 2011, activities of the opposite party in selling the project, without any sanction were noticed by the Competent Authorities and on 18.08.2012, as a result whereof, notice was published in a newspaper, stating that such sale was illegal.

                Counsel for the opposite party by making reference to the contents of that notice reproduced in earlier part of this order, stated that the opposite party is named as M/s Manohar Infrastructure and Constructions Pvt. Ltd., whereas, the said notice was issued qua a project launched by a separate entity named M/s Manohar Singh & Co., which has nothing to do with the opposite party. Similar question fell for determination before this Commission in a case titled as Shaminder Walia and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, Consumer Complaint No.918 of 2016, decided on 08.05.2017 (alongwith 05 connected cases). This Commission, while giving detailed findings, held as under:-

“We are surprised, how such a contention can be raised. It appears that when raising that contention, the Counsel has failed to look into the documents and photographs placed on record, when filing the written statement on behalf of the opposite party. In the document Annexures C-1 and C-2, (admittedly issued by the opposite party)  Logo of Manohar Singh & Co., has been used. The said logo appears as under:-

 

                                       

 

The same logo is available on various other documents on record and even on those documents, which were placed on record by the opposite party itself. Not only as above, in photographs placed on record as Annexure O-6 colly., on the tower situated, just next to the site office of the opposite party, logo plus name of Manohar Singh & Co., is available. It shows as under:-

                   

 

Above facts clearly indicate that notice published was qua the activities of opposite party only. The opposite party is a group of Companies. As such, the objection raised by Counsel for the opposite party, stands rejected.”

 

21.         It was further contention of Counsel for the complainant that huge amount was received without offering Buyer’s Agreement for signing. This fact is clearly admitted on record. The complainant was asked to sign the Agreement, only vide letter Annexure O-5 on 16.02.2017, when many complainants like the present one, started filing complaints against the opposite party. As per the provisions of Section 6 of the PAPRA, it is incumbent for the project proponent to execute Buyer’s Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three months. By not offering Buyer’s Agreement, for signing within reasonable time, the opposite party committed unfair trade practice and is also deficient in providing service. It was also so held by this Commission in Monika`s case (supra) as under:-

“Furthermore, it is apparent on record that the Buyer’s Agreement was not presented for signing. As per the provisions of Section 6 of the PAPRA, it is incumbent for the project proponent to execute Buyer’s Agreement on accepting application for purchase of unit etc., within a reasonable time say about two to three month. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

 

                As such, in the present case, by not offering Buyer’s Agreement, for signing in a reasonable time, the opposite party committed unfair trade practice and is also deficient in providing service.

22.         In the present case, an attempt has been made to by-pass the above provision by showing the sale as an expression of interest to purchase a plot. It has been so said before this Commission, at the time of arguments also, by Counsel for the opposite party that sale of the plot has not yet been confirmed, as such, there was no need to get the Buyer’s Agreement executed. It may be stated here that it was an outright sale, when first payment was accepted by the opposite party, vide cheque dated 31.10.2011. Thereafter also, the amount was received by the opposite party and in all, it has received substantial amount of Rs.34,25,000/-. Above said contention raised by the opposite party, qua similar project, in the same area, was rejected by this Commission, in Appeal No.248 of 2016, decided on 31.08.2016, titled as M/s Manohar Infrastructure and Constructions Pvt. Limited Vs. Sh.Tilak Raj Bakshi, wherein it was observed as under:-

“Furthermore, as is evident from the documents on record, the appellant is also guilty of violation of Section 6 of the Punjab Apartment and Property Regulation Act, 1995, (in short the PAPRA Act). In a very deceptive manner, an attempt has been made to show actual sale of plot, as an expression of interest. As has been held in earlier part of this order, vide document Annexure C-2, the terms and conditions of sale settled to make payment was also made available. Once it is so, by not offering the Buyers Agreement for signing in a reasonable time, say two to three months but on the other hand, after a lapse of many years of the sale of plot, the appellant has committed an unfair trade practice.”

 

23.         It is evident from the facts mentioned above that when the project in question was sold, neither CLU nor any other permission was available with the opposite party. The Agreement was entered into with the Govt. only on 14.06.2013, to launch this project and that too, subject to many conditions. Facts clearly indicate that the opposite party was guilty of launching a project against mandate of law. In view of above contention of Counsel for the opposite party that the complainant waived of her right to raise any objection because it was known to her that the project has still not been approved, however,  she opted to purchase the plot, in resale, is liable to be rejected.
24.         Another plea was taken by the opposite party, in its written version, to the effect that delay in delivery of possession of the plot was caused on account of ban on mining, as such, building material such as sand etc., remained short to an extent, meaning thereby that it had encountered force majeure circumstances.

                It may be stated here that as regards the alleged shortage of construction material like sand etc. in the market, nothing has been placed on record, by the opposite party, to prove that it was unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite party having invited tenders for supply of construction material and there being no response to such tenders. A similar plea for delay in delivery of possession of the units, was taken by a builder, before the Hon`ble National Consumer Disputes Redressal Commission, New Delhi, in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015,  which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to be present case. In the present case also, the opposite party failed to convince this Commission, that it actually encountered force majeure circumstances, as a result whereof, delay in handing over possession of the unit occurred. As such, the stand taken by the opposite party, that under above circumstances, time is not to be regarded as essence of contract, is rejected. 

25.         At time of arguments, it was vehemently contended by Counsel for the opposite party that application to get mega project approved, was filed in the year 2011. Delay occurred on account of laxity on the part of the bureaucrats and further it was deliberately done, because of rivalry existing between the political party in power and the Managing Directors of the Company. Such a plea has been taken just to raise it without any material on record. It may be stated here that the application to get necessary permissions, was moved in the year 2011, what happened thereafter; whether any objection was raised; whether at any point of time, it was taken up with the Authorities concerned, to give permission(s), within three months, as per Rules or not, has not been made clear. There is nothing on record, whether any Officer(s) of the Management of this Company was/were the member(s) of any political party; they ever contested any election; and whether question of rivalry causing delay on account of political reasons was ever taken up before the Competent Fora/Court of Law. It is on record that to get necessary permission qua the land in the project, applications were moved in parts. The opposite party continued to purchase land and continued moving applications, to the Competent Authorities. In this view of the matter, the plea taken by the opposite party, stand rejected.
26.         To defeat the claim of the complainant, a plea was also taken by the opposite party that this Commission has no territorial jurisdiction to entertain and decide this complaint.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, perusal of almost all the documents placed on record, reveals that the same have been issued and received from/by Chandigarh Office of the opposite parties.  In view of above, it can safely be said that this Commission has got territorial Jurisdiction to entertain and decide this complaint.  The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

27.         Further contention of Counsel for the opposite party that the complainant is an investor, as such, she is not a consumer is also devoid of merit. It may be stated here that there is nothing on the record that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by her, in resale, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, the complainant in para no.1 of her complaint has clearly stated that the plot, in question, was purchased by her for her personal use. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. The mere fact that any relative or the son of the complainant has also purchased a plot, in the project of the opposite party, did not mean that she is an investor. Since the opposite party has levelled allegations against the complainant, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only as above, recently under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

 “ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected.  

28.         In consumer complaint bearing no.171 of 2017 titled as Mr. Rajinder Kumar Rana Vs M/s Manohar Infrastructure and Constructions Pvt. Limited, an additional objection was raised that the complainant had purchased two plots. He and his wife had also purchased a plot, in the project of the opposite party, vide expression of interest dated 09.02.2011, for which they had filed consumer complaint bearing no.403 of 2016. The matter was compromised in that complaint and there was a promise made by the complainant and his wife that qua the plot, in dispute, he will not seek any refund. We have looked into the order dated 25.11.2016 Annexure O-6, passed in that regard. Since, nothing has been said qua that fact, as such, plea taken by the opposite party cannot be entertained.
29.         It is an admitted fact that the opposite party is  unable to deliver  possession of the developed plot, in question, for want of development/construction, basic amenities etc. and still firm date of delivery of possession of the plot, could not be given to the complainant. Even in the written statement, it was only stated that the opposite party is making efforts to deliver possession of the plot, in question, as early as possible. The photographs placed on record by the opposite party itself reveal that still it will take a long time for completing the development work. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by her, in resale. The opposite party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the plot. Under these circumstances, it can be said that there is a material violation in providing service, on the part of the opposite party. It is a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage (in the present case possession not offered) and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

30.         Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

31.         Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                The complainants, in all the complaints are, thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

32.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants, in all the complaints. It is not in dispute that amount aforesaid, was paid by the complainants, in all the complaints, without getting anything, in lieu thereof. The said amount has been used by the opposite party, for its own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335).  In view of above, the complainants, in all the complaints, are certainly entitled to get refund of the amount to be ordered by this Commission, alongwith interest on the deposited amount, from the respective dates of payments actually made by them.   
33.         A plea was also taken by the opposite party that since the complainant(s) have surrendered the previous plot(s) allotted to them, whereafter, another plot(s) was/were allotted to them, in the project named ‘Palm Springs’, as such, they are not entitled to interest on the amount deposited, qua previous plots. It may be stated here that not even an iota of evidence has been placed on record by the opposite party to prove that the plots allotted to the complainants in its project “The Garden” was fully developed and were ready for possession, but it was the complainants who refused to take possession of the same in the said project (Palm Garden), by writing clear-cut letters in that regard. Even otherwise, it has been observed by this Commission that relocation of allottees to the project ‘Palm Greens’ from ‘Palm Garden’ has been done by the opposite party, earlier, in number of cases also. As such, under those circumstances, the plea taken by the opposite party that since it was the complainants who were interested in relocation to the project ‘Palm Greens’, as such,  they are not entitled to interest from the date of booking of the plots, being devoid of merit, must fail and the same stands rejected.
34.         It is necessary to mention here that alongwith Monika’s case supra, one more case titled as Virinder Bharadwaj Vs. M/s Manohar Infrastructure and Construction Pvt. Ltd., Complaint case No.252 of 2016, was filed before this Commission. Both the complaints were allowed by this Commission vide common order dated 27.09.2016. Aggrieved of that order, the opposite party went in appeal bearing no.1436 of 2016 before the National Commission. The opposite party therein, has assailed the above said judgment, to the extent only of granting interest on the principal amount involved and payment of compensation and litigation expenses. Notice was issued confined to that extent. The opposite party was directed to refund the principal amount paid by the complainant in that case. Above fact would mean that on merits, the opposite party has failed to lay challenge to the judgment passed by this Commission, referred to above.
35.         As far as the plea raised by Counsel for the opposite party, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not its (opposite party) case, that it was ready with possession of the plot, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind from the allotment of plot, on account of some unavoidable circumstances/financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite party, only in those circumstances, it would have been held that the complainant is entitled to the amount deposited, after deduction of the earnest money, as per law. Otherwise also, since in the present case, Agreement was not got executed by the opposite party, as such, no terms and conditions, whatsoever, were applicable to the complainant. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected.
36.         In some cases, it was pleaded by Counsel for the opposite party that since after a lapse of two years, the complainants continued to make payment towards price of their respective units, and also, even in some cases, as per alleged promise made by the opposite party to deliver possession of plot within two years from the date of booking, the said period has lapsed, as such, at this stage, the complaints having been filed by them, is barred by limitation.  It may be stated here that since it is an admitted case that offer of possession of the plot(s), in question, could not be made till date, for want of development and basic amenities, and on the other hand, amount deposited was also not refunded to the complainant(s) alongwith interest, as such, there is a continuing cause of action, in their favour, 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). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for the opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.
37.         In consumer complaint no. 105 of 2017 titled as Jagdish Chander Vs M/s Manohar Infrastructure and Constructions Private Limited, an objection was also raised that to make payment towards price of the said unit, loan was raised by the complainant from the HDFC, however, for non-impleading of it (HDFC), as a necessary party to this complaint, the same (complaint) is liable to be dismissed. We are not going to agree with the contention raised. The complainant in paragraph no.10 of his complaint has brought to the notice of this Commission, that he had raised loan from the said Financial Institution. The said Financial Institution is not before us. If the complainant has to pay any amount to the said Financial Institution, it automatically will have first lien thereon. Even otherwise, in almost all the cases, where refund has been sought, this Commission orders the refund, as per facts of each case, with a direction that the Financial Institution, from which the purchaser has availed loan amount, if any, for making payment towards the plot(s)/unit(s), will have the first charge upon the amount payable. Even in this case also, this Commission is going to order on the same lines. In view of above, the complaint cannot be dismissed on this ground.
38.         At the same time, it is also held that no complicated question of facts and law are involved in this case. It is a simple case of non-delivery of possession of the plot(s)/unit(s) purchased by the complainant, in the project of the opposite party, in the manner, referred to above. Once the resale of plot, was accepted by the opposite party and, ultimately, it was transferred in the name of the complainant(s), now at this stage,  the objection taken by the opposite party to the effect that the said sale of plot was illegal, as the sale agreement executed between the original owners of the plots and the complainants, at the time of resale was not registered, has no significant value. If that was so, then why the opposite party, thereafter, by placing reliance on the said sale agreements, endorsed the plots, in favour of the concerned purchasers. Had the said sale agreement been defective, why they further kept on receiving amount from the complainants, towards price of the plot(s) and also towards other miscellaneous charges including external development charges, remained unexplained. They could have raised objection, in that regard, at the relevant time, but they did not do so. As such, at this stage, the said plea is nothing, but a tool used to defeat genuine claim of the complainants. This Commission is, therefore, competent to adjudicate the present complaint. There is ample evidence on record, which proves that opposite party was deficient in providing service and also adopted unfair trade practice. Plea taken by the opposite party, in this regard, as such, stands rejected.
39.         No other point, was urged, by Counsel for the parties, in all the complaints aforesaid.
40.         For the reasons recorded above, all the complaints are partly accepted, with costs in the following manner:-

 

In consumer complaint no.103 of 2017 titled as Harjit Kaur Vs. Manohar Infrastructure & Constructions Private Limited, the  opposite party is directed as under:-

1. To refund the amount Rs.34,25,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of actual deposits i.e. from the dates, when she started making payment of the said amount at the time of resale and onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no. 179 of 2017 titled as Vinay Kumar Verma Vs M/s Manohar Infrastructure and Constructions Private Limited, the  opposite party is directed as under:-

1. To refund the amount Rs.29,25,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no. 105 of 2017 titled as Jagdish Chander Vs M/s Manohar Infrastructure and Constructions Private Limited the  opposite party is directed as under:-

1. To refund the amount Rs.23,12,500/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no. 108 of 2017 titled as Pradeep Bansal Vs M/s Manohar Infrastructure & Constructions Pvt. Ltd. the  opposite party is directed as under:-

 

1. To refund the amount Rs.16,20,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no. 109 of 2017 titled as Ranjit Singh Vs  Manohar Infrastructure & Constructions Pvt. Ltd. the  opposite party is directed as under:-

 

1. To refund the amount Rs.27 lacs to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

 

In consumer complaint no. 110 of 2017, titled as Mrs. Sunita Rishi Vs M/s Manohar Infrastructure and Construction Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.27,40,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of actual deposits i.e. from the dates, when she started making payment of the said amount at the time of resale onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no. 171 of 2017 titled as Mr. Rajinder Kumar Rana Vs M/s Manohar Infrastructure and Constructions Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.13,87,500/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

In consumer complaint no.269 of 2017 titled as         Vinay Dhadwal Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.45.50 lacs to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.2 lacs for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.33,000/-to the  complainant.

 

In consumer complaint no. 268 of 2017 titled as         Mrs.Renu Patial Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.27,30,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

 

In consumer complaint no. 257 of 2017 titled as         Jatinder Kaur and another Vs. Manohar Infrastructure and Constructions Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.35,73,750/- to the  complainants, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.

 

In consumer complaint no. 241 of 2017 titled as         Sahil Vasisht Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited, the  opposite party is directed as under:-

 

1. To refund the amount Rs.22,50,000/- to the  complainant, alongwith interest @13% p.a.,  from the respective dates of deposits onwards.

 

2. To pay compensation, in the sum of Rs.1.50 lacs for causing mental agony and physical harassment, to the complainant, as also escalation in prices.

 

3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainant.

 

41.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, in all the complaints, as ordered above, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @13%, from the respective dates of deposits onwards, and interest @13% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
42. However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said units, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
43.         Certified copy of this order be placed in the connected files, referred to above.
44.         Certified Copies of this order be sent to the parties, free of charge.
45.         The file be consigned to Record Room, after completion.

Pronounced.

7-Aug-17

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.

 

 

 

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	171 of 2017
Date of Institution	:	23.02.2017
Date of Decision	:	7-Aug-17

 

Mr. Rajinder Kumar Rana son of Sh.Om Parkash Rana, resident of House No.3785, Sector 22-D, Chandigarh.

……Complainant

V e r s u s

 

M/s Manohar Infrastructure and Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Chairman/Managing Director/Director/Authorized Signatory. 

              ....Opposite Party

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:             JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                             MR. DEV RAJ, MEMBER.

                             MRS. PADMA PANDEY, MEMBER

 

Argued by:           Sh.Deepak Aggarwal, Advocate for the complainant.

                             Sh.I.P. Singh, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                   Vide our separate detailed order of the even date, recorded in consumer complaint bearing 103 of 2017 titled as Harjit Kaur  Vs. Manohar Infrastructure & Constructions Private Limited, this complaint has been partly accepted with cost. 

2.           Certified copy of the order passed in consumer complaint bearing No. 103 of 2017 shall also be placed on this file.
3.           Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 103 of 2017, be sent to the parties, free of charge.
4.           The file be consigned to Record Room, after completion.

         

         

 

 

 

          Sd/-                               Sd/-                               Sd/-

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.