Chandigarh

StateCommission

CC/864/2017

Rajinder Tiku - Complainant(s)

Versus

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

Shyam Kumar Sharma, Adv.

02 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	864 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	02.07.2018

Rajinder Tiku son of Late Sh.Manohar Nath Tiku.
Neerja Tiku wife of Sh.Rajinder Tiku

(resident of House No.D-36, Pamposh Enclave, Greater Kailash-1, New Delhi)

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

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.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

Vide our separate detailed order of the even date, recorded in Consumer Complaint bearing No.696 of 2017 titled as Vijay Kumar Jain and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited and ors., this complaint has been partly accepted with costs.

Certified copy of the order passed in consumer complaint bearing No. 696 of 2017 shall also be placed on this file.
Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 696 of 2017, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion

Sd/- Sd/- Sd/-

(DEV RAJ)

MEMBER

(JUSTICE JASBIR SINGH (RETD.))

PRESIDENT

(PADMA PANDEY)

MEMBER

Rg.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	696 of 2017
Date of Institution	:	18.09.2017
Date of Decision	:	02.07.2018

Vijay Kumar Jain son of Late Sh.Gora Lal Jain
Mrs Manorma Rani wife of Sh.Vijay Kumar Jain

Residents of House No.33, Preet Vihar Colony, Nabha, Patiala.

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	64 of 2018
Date of Institution	:	12.02.2018
Date of Decision	:	02.07.2018

Naresh Jagwan son of Sh.S.D. Jagwan, House No.100-A, Ground Floor, Sector 14, Panchkula.

……Complainant

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainant.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	65 of 2018
Date of Institution	:	12.02.2018
Date of Decision	:	02.07.2018

Anand Kumar Gupta son of Sh.Din Dayal.
Suman Gupta wife of Anand Kumar Gupta

Residents of House No.K-1/20 Model Town Delhi-9.

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	66 of 2018
Date of Institution	:	12.02.2018
Date of Decision	:	02.07.2018

Raman Sharma son of Late Harbans Lal Sharma resident of 5718 (A) Sector 38 West Chandigarh.

……Complainant

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainant.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	864 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	02.07.2018

Rajinder Tiku son of Late Sh.Manohar Nath Tiku.
Neerja Tiku wife of Sh.Rajinder Tiku

(resident of House No.D-36, Pamposh Enclave, Greater Kailash-1, New Delhi)

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	815 of 2017
Date of Institution	:	24.11.2017
Date of Decision	:	02.07.2018

Shilpa Suri wife of Gokulesh Suri
Gokulesh Suri son of Sh.Anil Kumar Suri

(resident of House no.17, Sector 11-A, Chandigarh)

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	816 of 2017
Date of Institution	:	24.11.2017
Date of Decision	:	02.07.2018

Puja Thapar wife of Shri Vijay Thapar
Vijay Kumar Thapar son of Sh.Bhim Sain Thapar, resident of House No.646, Ward No.14, Mohalla Krishanpura, Moga

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

Complaint case No.	:	863 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	02.07.2018

Meena Arora wife of Shri Madan Lal Arora
Madan Lal Arora son of Shri Mashia Ram.

Residents of H.No.540, Street No.4, New Town, Moga.

……Complainants

V e r s u s

M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
Sh.Tarninder Singh, The Managing Director cum Chief Executive Officer, M/s Manohar Infrastructure & Constructions Pvt. Limited, SCO No.139-141, Sector 17-C, Chandigarh.
Avighana Welfare Society having its Registered Office at 209, Sector 4, Panchkula (Haryana) through its President.

.... Opposite Parties

Argued by: Sh.Shyam Kumar Sharma, Advocate for the complainants.

Sh.I.P. Singh, Advocate for opposite parties no.1 and 2.

Sh.Deepak Bhardwaj, President of opposite party no.3.

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

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 eight consumer complaints, filed by the respective complainants. Arguments in the said complaints were heard in common, on 31.05.2018. In all the complaints, referred to above, issues involved, except minor variations, here and there, of law and facts are the same. As such, during arguments, it was agreed by the contesting parties, that all the eight complaints can be disposed of, by passing a consolidated order.

To dictate order, facts are being taken from Consumer Complaint bearing No.696 of 2017 titled as Vijay Kumar Jain and another Vs. M/s Manohar Infrastructure and Constructions Pvt. Limited and ors. The complainants are husband and wife respectively. Complainant no.1 is the member of Opposite party no.3 Society. The complainants moved an application to opposite party no.3, for allotment of a residential plot, measuring 250 square yards, for their personal use, in a Mega Housing Project, known as ‘Palm Garden’, Mullanpur, Punjab. The said project was launched by opposite party no.1, of which, opposite party no.2 is the Managing Director cum Chief Executive Officer. It is the case of the complainants that a Memorandum of Understanding (in short, the MOU) Annexure C-1 was signed between opposite party no.1 and 3 on 09.11.2011. Vide the said MOU, an area of 30000 square yards was reserved to be allotted to the members/ applicants of opposite party no.3. Applications to purchase plots in the said project were invited from the purchasers including the complainants, and the money so received was transferred to opposite parties no.1 and 2, by opposite party no.3. Taking note of amount received, 10000 square yards area was reserved for allotment of plots to the members of opposite party no.3, by opposite party no.1. Receipt of application and amount paid was acknowledged by opposite party no.1 by issuing documents Annexure C-2 and C-3 dated 31.08.2013. Price of the plot was fixed at Rs.44.75 lacs and the complainants paid an amount of Rs.13,42,500/- i.e. 30% of the basic sale price. On demand raised by opposite party no.1, another amount of Rs.8,95,000/- was paid against receipt dated 02.09.2013, Annexure C-5. Vide letter dated 01.05.2014 Annexure C-6 and reminder dated 02.07.2014 Annexure C-7 issued by opposite party no.1, the complainants deposited an amount of Rs.6,71,250/- on 09.10.2014 vide receipt Annexure C-8. Vide letter dated 11.07.2015 Annexure C-9, opposite party no.1 again directed the complainants to deposit further amount of Rs.5 lacs. The said demand was objected to, by the complainants, stating that it was unfair to demand external development charges, by writing a letter dated 22.07.2015, Annexure C-10, stating that the same are to be borne by opposite party no.1 and further let plot be allotted immediately or the amount deposited i.e. Rs.29,08,750/- be refunded with 24% interest. Opposite party no.1 again vide letter dated 01.01.2016, Annexure C-11 and 03.03.2016, Annexure C-12, raised demand for an amount of Rs.4,47,500/- and Rs.7,50,000/- respectively, towards basic sale price and other expenses. The said demand was again objected to, by the complainants, by writing letter dated 08.04.2016, Annexure C-13. Thereafter, opposite party no.1 wrote letter dated 28.11.2016 Annexure C-14, to the complainants, asking them to sign buyer’s agreement. Reading of the said letter indicates that plot no.1316A was allotted to the complainants. Similar letter was again written by opposite party no.1 to the complainants on 13.01.2017, asking them to make further payments and sign buyer’s agreement. Similar are the contents of letter dated 19.01.2017, 07.04.2017 and 31.07.2017. Thereafter, the complainants submitted representations that their letters written on 22.07.2015, 08.04.2016, 27.04.2017 and 18.04.2017 have not been considered. There was no development at the spot and also basic amenities were found missing. It was further stated that for non-compliance of terms and conditions of the MOU and also in not giving possession of the plot, let the amount deposited to the tune of Rs.29,08,750/-, be refunded with interest. It was further stated that even opposite party no.3/Society wrote letter requesting opposite party no.1 to fulfil its commitments made under the MOU dated 09.11.2011, so that legal implications may not arise, in future, but to of no avail. Stating above facts, by way of filing this complaint, a prayer has been made by the complainants to direct opposite party no.1 to refund the amount paid, with interest, compensation etc.
Upon notice, joint reply was filed by opposite parties no.1 and 2 and separate reply was filed by opposite party no.3.
Opposite parties no.1 and 2, in their joint written statement took numerous objections like, that expression of interest shown by the complainants was for speculative purposes. The plot, in question, was purchased for future gain, as such, the complainants being investors, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short the Act, 1986). It was pleaded that 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. Territorial jurisdiction of this Commission was also challenged. It was stated that the project of opposite parties no.1 and 2 have been registered under the . Jurisdiction of this Commission was further challenged, by stating that RERA being a special statute took precedence over the Act, 1986.
On merits, it was admitted that the plot, in question, was sold in favour of the complainants, in a project of opposite parties no.1 and 2 known as ‘Palm Garden’ aforesaid. Payments made by the complainants were also not disputed. To say that there was lot of development in the project, some photographs were placed on record. 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 opposite parties no.1 and 2 on 25.01.2017. In view of above, act of opposite parties no.1 and 2 in getting money deposited against expression of interest, from the purchasers stood rectified. The exemption granted will relate back to the date, when application was moved for sanction, to launch the project, in the year 2011 i.e. it is retrospective in nature. It was averred that once the State Government has not held that opposite parties no.1 and 2 had violated the provisions of PAPRA, as such, this Commission cannot go into the said question. It was stated that as per Section 35 of the PAPRA, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under it (PAPRA). It was further averred that now opposite parties no.1 and 2 are in possession of all the requisite permissions/clearances, in respect of the said project. Irregularities, if any, in accepting the expression of interest to purchase the land; non-execution of Buyer’s Agreement, as per Section 6 of the PAPRA etc. have no adverse effect on the project of opposite parties no.1 and 2. It was averred that after allotment of the plot, the complainants were requested number of times, to come forward for execution of the buyer’s agreement and pay the remaining amount towards price of the plot, but they failed to do so. It was stated that withdrawal from the purchase is malafide and it is open to opposite parties no.1 and 2 to forfeit upto 20% of the amount paid. It was further stated that claim of the complainants seeking interest @18% p.a. is totally unjustified. Even for fixed deposits, in the banks, rate of interest is very less. It was also stated that huge amount has been invested by opposite parties no.1 and 2 for getting necessary clearances and in developing the site in dispute. Opposite parties no.1 and 2 are trying to complete the project, as early as possible, as the development work is going on, in full swing and is near completion. It was further stated that the complaint is barred by limitation. However, in the same breath, it was pleaded that, since as per Supplementary Agreement dated 16.06.2016 the Govt. concerned has given completion period of the project upto 13.06.2018, as such, the said date has to be assumed as the date of delivery of possession of plot to the complainants. Opposite parties no.1 and 2 are making best efforts to complete development, so that they are able to deliver possession of the plot by 13.06.2018. It was stated that the complainants were defaulters in making payment towards price of the said plot. It was pleaded that since application seeking permission for filing joint complaint has not been filed by the complainants, as such, the complaint is liable to be dismissed on this ground too.
Besides raising above objections, it was specifically stated by opposite parties no.1 and 2 that the MOU was signed between opposite parties no.1 and 3, on 09.11.2011, vide which, plots were allotted, as per terms and conditions contained therein (MOU), on making deposit of requisite amount. It was further stated that the complainants booked a plot with the Society on 04.12.2011, however, as per record, their application was received by opposite party no.1 only on 31.08.2013. It was further stated that as per terms and conditions of the MOU, process to allot plots was to be started within three years, however, it could not be completed for non-deposit of further amount by opposite party no.3 and its members. Despite being defaulters, opposite party no.1 allotted plot bearing no.1316A to the complainants, vide letter dated 28.11.2016, Annexure C-14. They were asked to sign buyer’s agreement, however, they failed to do so, despite issuance of many reminders. It was averred that opposite party no.3 was doing a commercial activity and it would not fell within the definition of consumer and the complainants being its members, also would not fall within the definition of consumer. Further, there was no privity of contract, so far as opposite parties no.1 & 2 and the complainants are concerned.

Saying that neither there is any deficiency in rendering service nor adoption of unfair trade practice, on the part of opposite parties no.1 and 2, it was prayed that this complaint having no substance deserves dismissal.

Opposite party no.3, in its reply admitted that MOU was signed between it and opposite party no.1 on 19.11.2011. Terms and conditions of the said MOU were also admitted. It was stated that on account of deposit of amount, area measuring 10000 square yards was reserved for opposite party no.3 to be allotted to its members, as and when, plan was approved. It was further stated that immediately, on receipt of consideration amount from the complainants, it was transferred to opposite party no.1. To say so, reliance has been placed upon documents Annexures A and B i.e. statement showing transfer of amount through bank transaction to opposite party no.1 by opposite party no.3, in the month of November 2011. It was stated that thereafter opposite party no.1 directly raised demands, to make further payment and in response to that, amount was directly paid by the complainants, to opposite party no.1. It was pleaded that the project was delayed by opposite party no.1. Basic amenities were not provided and some approvals were granted in respect of the project, in question, only in the year 2017. To say that opposite party no.3 had made follow-ups, reference was made to various representations sent from time to time, by opposite party no.3 to opposite party no.1.
The contesting parties led evidence, in support of their cases.
We have heard the contesting parties and, have gone through the evidence and record of all the cases, carefully.
The first question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this complaint or not.

According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, perusal of almost all the documents (except few) placed on record, reveals that the same have been issued and received from/by Chandigarh Office of opposite parties no.1 and 2 i.e. Manohar Campus, SCO No.139-141, 1^st Floor, Sector 17-C, Chandigarh-160017. Payment receipts placed on record also reveal that substantial amount towards price of the said plot was received by opposite parties no.1 and 2, at Chandigarh, as the same bore round stamp of the said Office. Even the documents placed on record by opposite parties no.1 and 2 alongwith their reply, reveals that the same were issued by their Chandigarh Office. 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 opposite parties no.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

There is no dispute that a plot was sold to the complainants in the project aforesaid, against sale consideration of Rs.44.75 lacs. An amount of Rs.13,42,500/- was received by opposite parties no.1 and 2 from the complainants, as booking amount, which was acknowledged vide application acknowledgment receipt dated 31.08.2013 Annexure C-1. The payment made was 30% of the total sale consideration, for a plot measuring 250 square yards, in the project named ‘Palm Garden’, Mullanpur, Punjab. Thereafter, it is an admitted fact that as per demands raised by opposite parties no.1 and 2, the complainants kept on making payment, towards price of the said plot. There is no dispute that when this complaint was filed, the complainants had already paid an amount of Rs.29,08,750/-. There is nothing on record to show that by the time when the project was launched and sold, before grant of exemption from the provisions of applicability of PAPRA on 25.01.2017, any permission was available with opposite parties no.1 and 2.

It is specifically brought to our notice, at the time of arguments, by Counsel for the complainants that as per Guidelines to launch project in the mega housing project, (Palm Garden situated in mega housing project), it is not open to the project proponent like opposite parties no.1 and 2 to sell the project to general public without getting proper sanctions/ approvals from the Competent Authorities. Similar Guidelines were also brought to the notice of this Commission, in earlier complaints filed by consumers, in respect of the same project. Condition no.4 of the said Guidelines reads thus:-

“4 Conditions for grant of concessions:-

……….
The project shall not be advertised/launched and no money will be collected from general public for allotment of land/plot/flat/any space till such time the layout/zoning plans are cleared from the competent authority and exemption u/s 44 of PAPRA is issued by the Government.”

It is mandated that the project can only be launched when layout/zoning plans are cleared from the Competent Authorities and exemption is granted from operation of the provisions of PAPRA, by the Government concerned. It was also so said in the ‘Letter of Intent’ for the Grant of Special Package of Incentives under Industrial Policy 2009, issued on 03.05.2013 (the said document is available in some of the paper books of cases, already filed before this Commission) issued in favour of opposite parties no.1 and 2, by the Chief Administrator, PUDA, SAS Nagar, Mohali.

At the time of arguments, it has also come to our notice that when the project was advertised and sold in the years 2011-2012, opposite parties no.1 and 2 were not even registered with the GMADA, SAS Nagar, as a qualified project proponent, to obtain license under Section 5 of the PAPRA. Certificate of Registration was granted by the GMADA only on 27.06.2014, permitting opposite parties no.1 and 2 to setup a colony subject to their obtaining requisite licenses, as mandated under the provisions of PAPRA.

In view of above, contention of Counsel for the complainants that the project, in question, was sold without any permission(s)/sanction(s) from the Competent Authorities and also violating the provisions of Sections 4 (1) (a) and (b) and 6 of the PAPRA appears to be correct. The said provisions reads thus:-

“4. Issuing of advertisement or prospectus:-

(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-

(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and

(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication………………”.

“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) ;”

The fact that the project was launched without obtaining necessary permissions/sanctions having been obtained from the Competent Authorities, is further fortified from the document of opposite parties no.1 and 2, placed on record as Annexure O-8 (at page 79 of the file), showing in a tabular format, as to by which dates, approvals, NOCs were granted to them, by the Competent Authorities. Relevant part of the said table is reproduced hereunder:-

Sr.No.	Approval	Dated
	Approval of project	25.04.2013
	NOC from Forest Department	14.07.2014
	Approval of layout plan	06.10.2015
	Approval of zoning plan	24.11.2015
	Permission for solid water, sewerage and storm water disposal	06.07.2015
	Approval of detailed project/services plans of roads, water supply, sewerage, storm water drainage, treated water supply and electrification	27.11.2015
	Grant of Consent to Establish (NOC) Water and Air	1.12.2015
	NOC from Pollution Angle	15.02.2016
	Environment Clearance	03.06.2016
	NOC for electricity connection	15.03.2017
	Extension of Grant of Consent (NOC) Water and Air	17.04.2017
	Permission for Solid Waste Disposal and Storm Water Disposal	19.05.2017

Perusal of the afore-extracted table clearly reveals that not even a single permission was available with opposite parties no.1 and 2, when the project, in question, was launched and sold to the customers, including the complainants, in March 2011. As such, the project, in question, was launched in complete derogation of the above said provisions.

Collecting money from the perspective buyers without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It is well settled law that it is duty of the builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers. It was also so said by the National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads thus:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

Furthermore, amount accepted at the time of booking was more than 25% i.e. Rs.13,42,500/- against Rs.44.75 lacs. No Agreement was got signed, as is mandatory under the above said provisions. As such, there is a complete violation of the provisions of the PAPRA. It is an admitted case of opposite parties no.1 and 2 that permission seeking exemption from the applicability of provisions of PAPRA has finally been granted only in the year 2017, which cannot be said to have any retrospective effect. As such, it could very well be said that by selling the units without authority, opposite parties no.1 and 2 violated the provisions of PAPRA, and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on their part.

“To get a plot allotted in the project named as ‘Palm Garden’, first payment was received by the opposite party on 11.01.2012. It is virtually admitted 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.”

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.”.

At the time of arguments, Sh.I.P. Singh, Advocate, argued with vehemence that issuance of notification dated 25.01.2017 granting exemption from the applicability of many provisions of PAPRA qua mega project, in question, will relate back to 12.09.2011, the date, on which application was filed to get licence, under the mega housing policy. In a way, it was said that when the above notification was issued, it ratifies all the mistakes/irregularities committed by opposite parties no.1 and 2, qua sale of plots in the year 2011-2012, without obtaining necessary sanctions and approvals from the Competent Authorities. To so say, reliance has been placed upon the ratio of judgment in the case of M/s Murudeshwara Ceramics Ltd. Vs. State of Karnataka, 2002 (1) SCC Page 116.

On perusal of the entire record and documents, we are not going to accept the said arguments. In the case of Shaminder Walia (supra), similar contention was raised and the same was rejected by this Commission, by observing as under:-

“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 adopted by it qua sale of plots in the year 2012, etc. stands rectified. In para no.16 of its reply, it was specifically stated by 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.

“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.”

In the present case also, as stated above, there is nothing on record to show that when the project, in question, was launched and sold, any permission was available with opposite parties no.1 and 2. It is also not proved on record that the said fact of selling the project without permissions/approvals was brought to the notice of the intending purchasers. The purchasers were not informed that it will take years for obtaining necessary sanctions and approvals, after sale of the said project. In the present case, there is nothing on record to show that when notification dated 25.01.2017 granting exemption to opposite parties no.1 and 2 from the applicability of some provisions of the PAPRA was granted, violations committed were brought to the notice of the Competent Authorities/Govt. The mega housing policy and the provisions of PAPRA debars any builder to advertise and sell the project before getting necessary sanctions. Merely because in some newspaper, a notice had appeared on behalf of the GMADA intimating the general public that Manohar Singh and Company is selling the project unauthorizedly, would not amount to intimation to the Competent Authorities i.e. the Govt. of Punjab, that opposite parties no.1 and 2 have committed many mistakes, while selling the project, in question. Had those mistakes been brought to the notice of the Competent Authorities, at the relevant time, the license to launch the said project, was bound to be rejected, being in violation of provisions of the PAPRA; Special Package of Incentives under Industrial Policy 2009 and mega housing policy. Any ratification is possible, in case, the mistake committed is brought to the notice of the Competent Authorities. Thereafter, only the Competent Authorities by passing a conscious order can ratify the said mistake. In the present case, merely issuance of notification aforesaid, by the Competent Authorities, on 25.01.2017, would not ratify the mistakes committed in law by opposite parties no.1 and 2.
Such a contention also came up for consideration, before this Commission in Shaminder Walia’s case (supra) and it was rejected by observing as under:-

“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 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.

It is apparent on record that in the year 2012, 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. Copy of newspaper dated 18.08.2012, in which the said public notice was issued by the GMADA, is placed on record as Annexure C-10, in consumer complaint bearing no.890 of 2016, titled as Sheela Devi and another Vs. Manohar Infrastructure and Constructions Private Limited.”.

In the case of Shaminder Walia (supra), it was vehemently contended that M/s Manohar Singh and Co. and opposite parties no.1 and 2 namely M/s Manohar Infrastructure and Constructions Pvt. Ltd., are two different identities and notice issued in the said newspaper qua M/s Manohar Singh and Co. will not have any effect, so far, the project of opposite parties no.1 and 2 (M/s Manohar Infrastructure and Constructions Pvt. Ltd.) is concerned. The said contention was rejected by this Commission, by placing reliance upon various documents and the photographs.

In the present case, it was fairly admitted by Counsel for opposite parties no.1 and 2 that opposite parties no.1 and 2 are part and parcel of M/s Manohar Singh and Co. Above fact clearly demonstrates that the GMADA, when came to know about unauthorized sale of a project, issued a notice asking general public not to purchase any property from opposite parties no.1 and 2 and also contemplating a legal action. However, it appears that no such legal action was taken against opposite parties no.1 and 2. It may be on account of connivance of opposite parties no.1 and 2 with Offices of the said Authority.

Further contention of Counsel for the complainants is that amount was received without offering Buyer’s Agreement for signing, within a reasonable period say two or three months, and it was ultimately offered for signing after a period of more than five years. This fact is clearly admitted on record. As per the provisions of Section 6 of the PAPRA, it is incumbent upon 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, opposite parties no.1 and 2 committed unfair trade practice and also were deficient in providing service. 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, opposite parties no.1 and 2 committed unfair trade practice and are also deficient in providing service.

At time of arguments, it was also vehemently contended by Sh.I.P. Singh, Advocate for opposite parties no.1 and 2 that application to get mega project exempted was filed much earlier, however, there was delay on the part of Competent Authorities, in issuing notification regarding exemption of provisions of PAPRA.

Such a plea has been taken just to raise it without any material on record. It may be stated here that there is nothing on record, as to on which date, application to get exemption under PAPRA, was moved before the Competent Authorities. If it was moved much earlier, what happened thereafter; whether any objection was raised; whether at any point of time, it was taken up with the Authorities concerned, has not been made clear. There is nothing on record that when the Competent Authorities allegedly delayed the matter, any reminders were sent to them, to do the needful. Not even a single document has been placed on record that the Competent Authorities delayed the matter deliberately, despite the fact that necessary steps were taken at the end of opposite parties no.1 and 2. In this view of the matter, the plea taken by opposite parties no.1 and 2, stand rejected.

Further contention was raised by Counsel for opposite parties no.1 and 2 that the complainants are investors, as such, they are not consumers. We are not going to accept this contention. It may be stated here that there is nothing on the record that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the plot, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. Since opposite parties no.1 and 2 have levelled allegations against the complainants, the onus lay upon them, to place on record, documentary evidence in that regard, which they 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 complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2, therefore, being devoid of merit, is rejected.

It is an admitted fact that opposite parties no.1 and 2 are 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 actual physical possession of the plot, could not be given to the complainants. It was only stated that opposite parties no.1 and 2 are making efforts to deliver possession of the plot, in question and that possession of the plot will be delivered by 13.06.2018 i.e. during pendency of this complaint, which date has also expired. However, no such offer was ever made by opposite parties no.1 and 2, if at all; the project was developed, in all respects. However, on the other hand, photographs placed on record by opposite parties no.1 and 2 themselves, reveal that still it will take a long time for completing the development work. It can easily be revealed from the said photographs that still lot of work is pending to be done as far as the roads, parks etc. are concerned. Sanitary/sewerage pipes are found lying in open ground. It can be adjudged from the photographs placed at page 61 of the file, that only entrance of the project has been beautified, to allure the innocent customers. Otherwise, photographs themselves prove the position of the project, as in 2018. The plot was booked in the year 2011 and now it is July 2018. The complainants cannot be made to wait for an indefinite period, for delivery of possession of the plot purchased by them. Opposite parties no.1 and 2, therefore, had no right, to retain the hard-earned money of the complainants, 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 opposite parties no.1 and 2. 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 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.”

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.

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, are, thus, entitled to get refund of amount deposited by them. In view of above facts of the case, opposite parties no.1 and 2 are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

Further contention was raised by Counsel for opposite parties no.1 and 2 that in the face of supplementary agreement dated 16.06.2016, whereby the Govt. of Punjab, has granted permission to complete the project by 13.06.2018, as such, the complainants were to be handed over possession on or before that date. It may be stated here that we have gone through the contents of the Supplementary Agreement dated 16.06.2016 and are of the considered opinion that it is of no help to opposite parties no.1 and 2, as far delay in delivery of possession of the plot, in question, to the complainants are concerned. The said Agreement was signed between opposite parties no.1 and 2 and the Govt. of Punjab, only in relation to permission sought by them (opposite parties), vide letter dated 25.08.2015 (after about more than three and a half years of booking of the present plot), for addition of 94.60 acres of more land in the project area. It was on account of this reason, that supplementary agreement was executed.

At the same time, if this plea taken by opposite parties no.1 and 2 that since supplementary agreement was executed on 16.06.2016 between them and the Govt. of Punjab and as such, now they (opposite parties no.1 and 2) are liable to hand over possession of the plot to the complainants latest by 13.06.2018, is considered in favour of opposite parties no.1 and 2, then it would amount to admittance on their (opposite parties) part that till 16.06.2016, they were not in possession of the land even, but on the other hand, they had booked a plot and received 30% of the price of the plot, as far as back in 2011 and Rs.29,08,750/- (about more than 60% of sale consideration) by October 2014. Furthermore, it is not clarified by opposite parties no.1 and 2 that if the land for plot was ultimately got in their hands, by way of supplementary agreement dated 16.06.2016, then for which land, they were talking about in the application acknowledgment receipt dated 04.12.2011 issued in favour of the complainants, saying that all layout plans, specification and other details are tentative. If this is so, it amounts to grave unfair trade practice on the part of opposite parties no.1 and 2, as they have received an amount of Rs.29,08,750/-, against a plot by October 2014, but on the other hand, till 15.06.2016, they have not even acquired land for the same (plot). Sequence of events narrated above, clearly goes to prove that the conduct of opposite parties no.1 and 2, throughout remained contumacious. As stated above, not even a single permission to launch the project was available with opposite parties no.1 and 2 at the relevant time. As has been discussed in earlier part of this order, permissions continued to pour in, upto the year 2017. Even as on today, there is nothing on record to show that development at the site is complete. Despite request made, refund of the amount paid by the complainants towards price of the said plot, has not been made. It can safely be said that the complainants were well within their right, to file this complaint. It was nowhere agreed to between the parties, at the time of booking of the said plot, that the complainants can be made to wait for an indefinite period.

At the same time, in the face of plea having been taken by opposite parties no.1 and 2 that they were required to deliver possession of the plot to the complainants by 13.06.2018, as per the terms and conditions of the supplementary Agreement referred to above, as such, in the same breath taking a plea that the present case is beyond limitation, is not sustainable in the eyes of law and is accordingly rejected. Even otherwise, it is not the proven case of opposite parties no.1 and 2 that they were ready with delivery of possession of the plot, within a reasonable period of about two to three years, from the date of booking thereof, but the complainants, failed to take the same, on account of some personal grounds/financial constraints. It is settled law that in the cases, where possession of the residential units is not offered by the builder, there is a continuing cause of action, in favour of the allottee/purchaser.

Further contention was raised by Counsel for opposite parties no.1 and 2 that in the face of provisions of the RERA, under which opposite parties no.1 and 2 have registered the project, in question, on 15.09.2017, it was not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of opposite parties no.1 and 2, they may approach under the said Act (RERA) and not under the Act, 1986.

We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is on record that under the RERA, opposite parties no.1 and 2 got themselves registered their project, only on 15.09.2017. It is also on record that some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by opposite parties no.1 and 2 without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred.

It may be stated here that the Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against opposite parties no.1 and 2. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website

“85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?

As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

86. Can a complainant approach both the Regulatory Authority / adjudicating officer and the consumer forums for the same disputes?

The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter.”

It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred.

Be that as it may, a similar question came up for consideration, before this Commission, when considering the applicability of the provisions of Section 8 (amended) of Arbitration Act 1996 Act viz a viz CPA 1986, in the case of ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, wherein, it was observed as under:-

“ “The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case, some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act, a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

It was authoritatively said that in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras, for redressal of their grievance, notwithstanding that he can get relief under any other Act. Similar findings, to the effect that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, has been upheld by the Hon’ble Supreme Court of India, in Civil Appeal bearing No.23512-23513 of 2017, vide order dated 13.02.2018.

In view of above findings, we can safely say that RERA and PAPRA 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 opposite parties no.1 and 2.

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 parties went in appeal bearing no.1436 of 2016 before the National Commission. The opposite parties 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 parties were directed to refund the principal amount paid by the complainant in that case. Above fact would mean that on merits, the opposite parties have failed to lay challenge to the judgment passed by this Commission, referred to above.
In the present case, an attempt has been made to by-pass the above provision of PAPRA 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, by Counsel for opposite parties no.1 and 2 that sale of the plot has not yet been confirmed. It may be stated here that it was an outright sale, when first payment of Rs.13,42,500/- was accepted by opposite parties no.1 and 2, in the year 2011, through opposite party no.3, as is evident from the document Annexure C-3. Thereafter also, the amount was received by opposite parties no.1 and 2 and in all, they have received substantial amount of Rs.29,08,750/-4. Above said contention raised by opposite parties no.1 and 2, qua similar project, 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.”

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 opposite parties no.1 and 2. The Agreement was entered into with the Govt. only on 14.06.2013, to launch this project and that too, subject to many conditions. It is also on record that to get necessary permission qua the land in the project, applications were moved in parts. Opposite parties no.1 and 2 continued to purchase land and continued moving the applications, to the Authorities. Facts clearly indicate that opposite parties no.1 and 2 were guilty of launching a project against mandate of law.
In view of above, contention of Counsel for opposite parties no.1 and 2 that since the complainants have themselves showed their preference for a plot, which was allotted to them in the year 2015, as such, the delay if any will be deemed to have been waived of by them, stands rejected. There is nothing on record to show that plot was selected by the complainants and further when the plot was sold, not even a single permission was available with opposite parties no.1 and 2. There is nothing on record to show that delay caused was condoned by the complainants. Reliance placed by opposite parties no.1 and 2 on Krishna Bahadur Vs. M/s Purna Theater, 2004 (4) S.C.T 137, is of no help to them, as far as facts of the present case are concerned, because facts of that case are altogether different.
Now, we will deal with the objection raised by Sh.I.P. Singh, Advocate for opposite parties no.1 and 2, that there was no privity of contract between the complainants and opposite parties no.1 and 2. A plot was reserved in favour of opposite party no.3 against MOU signed on 09.11.2011. Opposite party no.3 is a commercial organization; the complainants are its members, as such, they do not have any right to file this complaint against opposite parties no.1 and 2. Opposite party no.1 came into picture only on 31.08.2013, when it acknowledged payments made by the complainants, and they (complainants) were registered as purchasers, on the said date. It was contended with vehemence that at the maximum, the complainants can seek remedy against opposite party no.3 and not opposite party no.1. Plots were to be earmarked for them, within next three years, which was virtually done by opposite party no.1, vide letter dated 28.11.2016, when intimation was sent to the complainants to sign buyer’s agreement. However, they failed to do so. In view of above, it is stated that qua opposite parties no.1 and 2, complaint be dismissed.

We are not convinced with the argument raised. As per facts mentioned in earlier part of this order, it appears that opposite party no.3 was another face of opposite party no.1 and to facilitate sale of more area, land was shown to have been allotted in favour of opposite party no.3. Terms and conditions of MOU dated 09.11.2011 make it very clear that virtually through the said MOU, commitment was made with the consumers/purchasers to hand over possession of plots, in a developed project, in a time bound manner. Relevant provisions of the said MOU read thus:-

“That the first party shall be responsible for the internal development of the project at their own costs, however, the only expenses for external development in proportion to the plots in question belonging to the second party shall be borne by the second party or its nominee which shall be deposited with the State Govt./GMADA through the first party.
That besides internal development the first party shall also provide the basic amenities in terms of the sanctioned project including water and electricity supply, ingress and egress to the plots in question on the terms as applicable to the other allottees or purchasers of the other residential plots/flats in the project.
That the second party will pay a sum of 30% of Rs.17,900/- (Rupees seventeen thousand and nine hundred only) per sq yd of plot value by each customer to the first party duly acknowledged its receipt thereof for the above said purpose showing the area of the plot in Palm Gardens. This payment of 30% shall be paid as shown in the Annexure -1 attached. The last date of this payment will be 15^th December 2011.
In the event this initial 30% payment is not received on schedule as stated in Annexure -1 than the allotment of land shall be made proportionate to the money received.
The in lieu of the above mentioned contributors made by the second party to the first party, the first party has reserved a plot/piece of land measuring 30000 sq. yards spread in Palm Garden. The open parks and roads access shall be in excess to the area mentioned above. The category or size shall be according to the approved or sanctioned project and same may according to the terms of sanction/approval. Accordingly, the contribution made by the second party will be treated as part of the consideration amount for the allotment of the above mentioned plots in the project after the grant of requisite sanctions, approval and licenses by the concerned authorities.
That in the case the First party is unable to secure the necessary sanctions, approval and licenses from the concerned authorities, then only the said contribution in clause 3 would be refunded to the second party/customer/nominee alongwith interest @10% per year, within two months of the second party making a written request to this effect to the First party. The contributor may demand refund only after 18 months of singing this MOU. The process of providing the plots to the second party or their customers will start within 3 years from the date of MOU. The contributor may seek refund along with 10% interest in case he is not delivered the plot in the above said stipulated period.
Balance of part consideration amount up to 60% of Basic Sale Price will be paid in installments over 2 years as per demand raised by the company from time to time and as shown in the payment plan attached in Annexure-2 starting from the date of the Mega Project clearance from Punjab Government. However, in the last installment of 10% shall be paid on possession.
The second party will given in writing the name of the customer who wants to purchase the plots along with the booking amount and that will become the part of this agreement on or before November 30^th, 2011 ”

Reading of the above Clauses of MOU makes it very clear that it was committed by opposite party no.1 that it will undertake internal development of the project and expenses for external development charges will proportionately be paid by opposite party no.3/its nominee. Basic facilities were committed to be provided by opposite party no.1. It was further agreed to between the parties, that purchaser will pay consideration amount equal to 30% of the price to opposite party no.3. It was further admitted that if within 18 months of signing of MOU, necessary permissions are not granted to the project, by the Competent Authorities, the opposite party no.3 will be at liberty to seek refund of amount paid, with interest and further it was committed that possession of the plots will be handed over within three years from the date of signing of the said MOU.

It is apparent on record that when the said MOU was signed and plots were sold to the general public including the complainants, not even a single approval/permission was available with opposite party no.1. The project was sold in total violation of provisions of the PAPRA and further it appears to be a self-help transaction between opposite parties no.1 and 3. Opposite party no.3 was only facilitating sale of plots by opposite party no.1. It is proved on record that on receipt of payments made by the complainants and other purchasers, the amount was immediately transferred to opposite party no.1 through cheques. It is clearly so reflected in the documents Annexures A and B, attached with the written statement filed by opposite party no.3. It is also on record that after making initial deposit of an amount of Rs.13,42,500/- on 16.12.2011, to opposite party no.1, through opposite party no.3, qua further demands raised, and amount paid, there was a direct communication between opposite party no.1 and the complainants. In documents Annexure C-3 and C-4, acknowledging payments made to opposite party no.1 in the year 2011, it has been clearly mentioned that the complainants moved an application for purchase of plot on 04.12.2011 and further it is stated that 30% of the amount i.e. Rs.13,42,500/- has been received. Documents referred to above, and the facts mentioned therein clearly shows that the opposite party no.3 was only a face of opposite party no.1 and was facilitator to enhance sale of plots by it (opposite party no.1) and virtually it was a direct transaction between opposite party no.1 and the complainants, so far as sale of the plot is concerned. To say that opposite party no.1 came into picture only in the year 2013 is incorrect.

It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that amount aforesaid, was paid by the complainants, without getting anything, in lieu thereof. 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. In view of above, the complainants are certainly entitled to get refund of the amount deposited, alongwith interest on the deposited amount, from the respective dates of payments actually made by them.
As far as the plea raised, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite parties, that within a reasonable period say two to three years, from the date of booking of the said plot, they were ready with possession of the plot, to be delivered to the complainants but the complainants wanted to rescind, on account of some unavoidable circumstances/financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that the complainants are 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 opposite parties no.1 and 2, as such, no terms and conditions, whatsoever, were applicable to the complainants. At the same time, merely placing on record some reminder letters sent to the complainants, for execution of buyer’s agreement, starting from 2016, will not absolve the liability of opposite parties no.1 and 2, by saying that since the complainants did not come forward to do so and also to pay the remaining sale consideration, as such, they being defaulters are not entitled to any claim. Why opposite parties no.1 and 2 were silent for more than six years for execution of the agreement and that too after receiving Rs.29,08,750/-, has not been clarified. It appears that opposite parties no.1 and 2 started writing such letters for execution of the agreement, when they found that in number of complaints filed against them, a specific finding has been recorded against them, by this Commission, that they are deficient on this count, which act amounted to gross unfair trade practice. In this view of the matter, the plea taken by opposite parties no.1 and 2, that the complainants failed to come forward for execution of buyer’s agreement, when letters were sent starting from 2016/2017 onwards, is nothing, but a tool to escape from their liability and is accordingly rejected.
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-execution of agreement within the reasonable time; non allotment of plot; and non-delivery of possession of the plot(s)/unit(s) purchased by the complainants, in the project of opposite parties no.1 and 2. This is a case of deficiency in providing service and also adoption unfair trade practice. This Commission is, therefore, competent to adjudicate the present complaint. Plea taken by opposite parties no.1 and 2, in this regard, as such, stands rejected.
At the time of arguments, it was vehemently contended by Counsel for opposite party no.3 that since opposite parties no.1 and 2 were to develop the project and sold the plots, in their project, as such, it (opposite party no.3) being a Society was only a facilitator to the complainants, is not liable to make any refund of the amount paid by them, especially when the same was transferred to them (opposite parties no.1 and 2). As stated above, opposite party no.3 was another face of opposite party no.1 and to facilitate sale of more area, land was shown to have been allotted in favour of opposite party no.3. As such, it can safely be said that opposite party no.3 was carrying on the job/business, to enhance sale of plots by opposite party no.1, in the said project. An inference can also be drawn that opposite party no.3 being a Marketing Agency, was well aware of the fact that the project was launched by opposite party no.1, without obtaining necessary approvals/sanctions. However, despite that fact, opposite party no.3 got filled application forms from the buyers including the complainants, in respect of sale of plots, in the project of opposite parties no.1 and 2. It may be stated here that it is settled law that 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, alongwith the project proponent. Similar view was taken by the Hon’ble National Commission in Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand`s case (supra).
To defeat the claim of the complainants, an objection was also raised that since application for permission to file joint complaint has not been moved by the complainants, as such, the complaint is liable to be dismissed on this ground alone.

We are not going to agree with the contention raised. From the perusal of contents of the complaint, it reveals that the same has been signed by both the complainants, who are husband and wife, respectively. It was for this Commission, to satisfy itself, as to whether, the complaint filed is maintainable or not. Once, notice has been issued by this Commission, in this complaint, after seeing that the complaint was signed by both the complainants, who are husband and wife respectively, permission will be deemed to have been granted to the complainants to file this complaint, jointly. Even otherwise, the proceedings before the Consumer Fora, are summary, in nature. The Consumer Protection Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. In view of above, the plea taken by opposite parties no.1 and 2, stands rejected.

For the reasons recorded above, all the eight complaints are partly accepted, with costs, in the following manner:-

In Consumer complaint bearing no.696 of 2017, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainants, alongwith interest @13% p.a., from the respective dates of deposits onwards.

To pay compensation, in the sum of Rs1 (one) lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.

To pay cost of litigation, to the tune of Rs33,000/- to the complainants.

In Consumer complaint bearing no.64 of 2018, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no.65 of 2018, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainants, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no.66 of 2018, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no. 864 of 2017, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainant, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no.815 of 2017, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainants, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no.816 of 2017, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainants, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

In Consumer complaint bearing no.863 of 2017, opposite parties no.1 to 3, jointly and severally are directed as under:-

To refund the amount Rs.29,08,750/- to the complainants, alongwith interest @13% p.a., from the respective dates of deposits onwards.

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

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

It is made clear that, in all the complaint cases, referred to above, joint and several liability of opposite party no.3/ Avighana Welfare Society, shall remain restricted to make refund of amount alongwith interest, upto the amount received by it (opposite party), directly from the complainant(s).
The payment of awarded amounts mentioned at sr.nos.(i) to (iii) above, shall be made, in all the complaints, in the manner 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) thereafter shall carry penal interest @15% p.a., instead of @13%, from the date of default 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.
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 their respective units, it will have first charge of the amount payable, to the extent, the same is due to be paid by them (complainants). It is further made clear that, in case, in any of complaints above, the complainants have obtained housing loan, under subvention scheme, the builder/opposite party(s) shall deduct the amount of Pre-EMI interest, if any, paid by it to the financial Institution/ Bank concerned, from the amount so ordered to be refunded to the complainant(s).
Certified copy of this order be placed in the connected files, referred to above.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion

Pronounced.

02.07.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Rg.

Chandigarh

StateCommission

CC/864/2017

Rajinder Tiku - Complainant(s)

Versus

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

Shyam Kumar Sharma, Adv.

02 Jul 2018

ORDER

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