Chandigarh

StateCommission

CC/21/2022

Sanjeev Gulati - Complainant(s)

Versus

Punjab Urban Planning & Development Authority - Opp.Party(s)

Gaurav Gupta Adv.

26 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	21 of 2022
Date of Institution	:	15.02.2022
Date of Decision	:	26.07.2022

 

Sh. Sanjeev Gulati S/o Parshotam Lal Gulati R/o #2309, Sector-38 C, Chandigarh.

….Complainant.

Versus

Punjab Urban Planning & Development Authority, through its Chief Administrator/ Authorized Signatory, Office:- PUDA Bhawan, Sector-62, SAS Nagar, Mohali.

….Opposite Party.

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS.PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Argued by:-

 

Sh. Gaurav Gupta, Advocate for the complainant.

Sh. Ashish Grover, Advocate for the opposite party.

 

PER  RAJESH  K.  ARYA, MEMBER.

                    The facts, in brief are that the complainant, namely, Sh. Sanjeev Gulati applied for 256 sq. yds. residential plot in the project of the Opposite Party (Punjab urban Planning & Development Authority), namely, Gateway City, Sector 118-119, SAS Nagar, Mohali vide application dated 13.01.2015 (Exhibit C-1) by paying 10% i.e. Rs.5,37,600/- towards earnest money of the total sale consideration of Rs.53,76,000/- of the plot applied for. The draw of lots was conducted on 19.03.2015 and the complainant was successful in the said draw of lots. Thereafter, the Opposite Party issued Letter of Intent dated 09.06.2015 (Exhibit C-2) to the complainant in respect of allotment of residential plot. As per the terms of Letter of Intent, the complainant paid next installment of 15% i.e. Rs.8,06,400/- and further paid 2% cancer cess, which was Rs.1,07,520/- vide receipt dated 03.07.2015 (Exhibit C-4). Thereafter, the Opposite Party allotted residential plot No.189 measuring 256.66 sq. yards in its project vide allotment letter dated 21.09.2016 (Exhibit C-5). The complainant made the total payment of Rs.60,06,524/- towards the said plot till 26.11.2018. As per Clause 4 of the allotment letter, physical possession of the plot was agreed to be delivered after the completion of development work at the site or 18 months from the date of issuance of allotment letter, whichever was earlier. The complainant came to know that the Opposite Party till date did not obtain Completion Certificate or other required documents from the concerned department. The Opposite Party vide letter dated 29.10.2020 (Exhibit C-14) informed the complainant that plot No.189, Sector 118-119, Gateway City, SAS Nagar is not feasible and consent was called for alternative plot. It has been stated that despite receipt of the huge amount from the complainant, the Opposite Party neither delivered possession of the said plot nor refunded the amount to the complainant, which amounted to deficiency in rendering service and unfair trade practice on its part. The complainant is claiming refund of the deposited amount of Rs.60,06,524/- alongwith interest @15% p.a. from the date of payments till actual realization besides Rs.5 Lakhs as damages for physical and mental agony suffered by him and Rs.85,000/- towards cost of litigation.

2]                The Opposite Party, namely, Punjab Urban Planning & Development Authority (PUDA), contested the complaint, by filing written statement, wherein, while admitting the factual matrix of the case with regard to allotment of plot consequent to the complainant becoming successful in the draw of lots, amount paid by the complainant and the plot allotted not feasible, in its defense has taken following preliminary objections and pleadings:-

1. The complainant is not a consumer as he purchased the plot for speculation purpose for earning profit by way of resale and not for his self residence.
2. This Commission has no territorial jurisdiction to entertain the complaint as the project in which the plot was purchased by the complainant is situated in Mohali and the office of the opposite party is also situated at Mohali.
3. The complaint involves disputed and complicated questions of fact and law, which cannot be adjudicated in a summary manner by this Commission.
4. The complaint deserves to be dismissed on the ground that the complainant has neither any locus standi nor there is any cause of action to institute the present complaint, which is bad for mis-joinder and non-joinder of necessary parties.
5. The complaint deserves to be dismissed on the ground that the complainant has not approached this Commission with clean hands and has concealed material facts.
6. As per Arbitration Clause XII in the allotment letter, the matter has to be referred to the Sole Arbitrator i.e. Chief Administrator, PUDA, Mohali or any other officer/official appointed/nominated by him and the decision of the Chief Administrator will be final and binding on all the parties.
7. The complaint is barred by time as the same has been filed after a huge delay and as such, liable to be dismissed on this score.
8. All the work at the site was completed well within the stipulated period except the area falling in Revenue Rastas, which has not been purchased by PUDA and development works of area falling in revenue rastas will be completed in due course. However, partial completion of the work in the area, except Revenue Rastas, has been accorded by the agency executing the work in the area w.e.f. 30.6.2017.
9. The complainant was informed vide letter dated 29.10.2020 (Exhibit C14) that the plot No.189 is not feasible and he should send his consent for allotment of alternate plot in the same site, which he never gave. The complainant, at the most, could have claimed for allotment of the alternative plot on the same terms and he has no legal right to claim refund of the deposited amount with interest and compensation.
10. There is no violation of PAPRA regulation by the opposite party and lastly, prayer for dismissal of the complaint has been made.

3]                The complainant filed rejoinder wherein he reiterated the averments made in the complaint and repudiated those as stated in the written statement of the opposite party.

4]                The parties led evidence in support of their case.

5]                We have heard the Ld. Counsel for the parties and have gone through the evidence/documents on record and the written arguments of the parties very carefully.

6]                First we deal with the preliminary objections raised by the opposite party as under:-

[i]             Complainant not a consumer

                   An objection has been taken by the opposite party to the effect that complainant is not a consumer as he purchased the plot for speculation purpose for earning profit by way of resale and not for his self residence. It may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite party to establish that the complainant has purchased the plot in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence, we hold that the complainant is a consumer as defined under Consumer Protection Act 2019. In Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon’ble National Commission negated the plea taken by the builder, while holding 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 this view of the matter, objection taken by the opposite party stands rejected. 

[ii]            Territorial Jurisdiction

                   Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant case, it is evident that payments were made by the complainant from Chandigarh through cheques from The Punjab State Cooperative Bank Limited, Sector 38, Chandigarh vide payment receipts, Exhibit C-3 & C-4. Moreover, he is resident of Chandigarh and the complaint has been filed under new Consumer Protection Act, 2019, as per Section 47(4)(d) whereof, a complaint can be instituted before the State Commission within the limits of whose jurisdiction, the complainant resides or personally works for gain. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken, thus, stands rejected.

[iii]           Complicated questions of fact & law

                   As regards the next objection raised by the opposite party that the matter involves complicated question and disputed facts, which cannot be decided in summary jurisdiction by this Commission, it may be stated here that it is a simple case where the complainant is seeking refund of his amount, which he paid for the plot allotted to him by the opposite party, possession whereof is still awaited despite expiry of the stipulated period. Thus, it is held that no complicated question of facts and law are involved in this case. Therefore, the objection raised stands rejected.

[iv]            No locus standi to file the complaint, which is also bad for mis-joinder and non-joinder of parties.                  

                   This objection is not sustainable in the eyes of law as the opposite party has not stated in its reply, which are the parties, which have not been impleaded and which were necessary for the just decision of the case. Thus, the complainant is having the locus standi to file the present complaint. As such, this objection raised by the opposite party also stands rejected.

[v]             Complainant not approaching the Commission with clean                         hands.

                   This objection of the opposite party also stands  rejected being an afterthought. Perusal of the pleadings of both the parties makes it very clear that nothing new has been brought on record by the opposite parties, whereupon, it could be said that the complainant has concealed something or he has approached this Commission with unclean hands.

[vi]            Arbitration Clause

                   Now coming to the  objection taken by the opposite party to the effect that in the face of existence of Arbitration clause in the allotment letter, jurisdiction of this Commission is barred; it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos.2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection taken in this regard stands rejected.

7]                Now coming to the merits of the case, it is admitted case of the parties that the possession of Residential Plot No.189 measuring 256.66 Sq. Yard of category General at Gateway-City, Sector 118-199, SAs Nagar, allotted to the complainant vide Allotment Letter dated 21.09.2016, Exhibit C-5, as per Clause 4 – POSSESSION AND OWNERSHIP, was to be handed over to the complainant after completion of the development works at site or 18 months from the date of issuance of the allotment letter, whichever is earlier. Undisputedly, the possession of the said residential plot was never offered or handed over to the complainant even after lapse of the stipulated period of 18 months        i.e. 21.03.2018. However, vide letter dated 29.10.2020, Exhibit C-14, after almost four years from the date of allotment, the opposite party informed the complainant that residential plot No.189 was non-feasible and consent was sought from the complainant to allot him alternate plot in the same area by 02.11.2020. However, since the complainant was not willing to go for alternate plot, he sought refund of the amount, which he had paid to the opposite party for the plot actually allotted to him i.e. plot No.189, which the opposite party refused.

8]                The admission of the opposite parties to the effect that they offered relocation to the complainant or that they are still ready to relocate him and also ready to compensate him for the period of delay, in itself is sufficient to hold that they made false representations in respect of the plot in question,  which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that the opposite party offered a plot which was not feasible, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

9]                Complaint is time barred

                   Since, it is an admitted fact that possession of plot in question, has not been offered either by the promised date or by the date this complaint has been filed or even thereafter or even by making the said allotted plot feasible, as explained above, as such, there is a continuing cause of action in favour of the complainant to file this complaint in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard, as such, stands rejected.

10]              Complainant entitled to refund.

                   The plot in question was booked as far as back in 2015 and now it is 2022 and still the complainant is empty handed. There has been an inordinate delay in the matter. Under above circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period for delivery of possession of the unit in question, at the whims and fancies of the opposite parties that they are ready to compensate the complainant for the period of delay in offering possession of the unit in question. It is well settled law that non-delivery of possession of plots/units is a material violation on the part of the builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. We are of the considered opinion that in view of the facts and circumstances of these cases, we cannot make the complainant to wait for an indefinite period, in the matter. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present cases also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if in the present case also, we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited and also by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019;  and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 wherein interest @12% p.a. was awarded, that will meet the ends of justice.

11]              At the same time, it is also held that since fault if any is on the part of the opposite party only, as it miserably failed to offer and deliver possession of the plot to the complainant by the committed date referred to above and subsequently, declaring the said plot as non-feasible, thereby causing lot of mental agony and harassment to him, as such, the opposite party cannot take any benefit out of the deficiency in providing service and adoption of unfair trade practice on its part, by forfeiting the amount paid by the complainant. Plea taken by the opposite party in this regard that the complainant is not entitled to refund stands rejected.

12]              For the reasons recorded above, this complaint is partly accepted, with costs and the opposite party is directed as under:-

1. To refund the amount of Rs.60,06,524/- to the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

13]              However, it is further made clear that in case the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the plot in question, it will have the first charge on the amount payable, to the extent, the same is due to be paid by the complainant.

14]              Certified copies of this order be sent to the parties, free of charge.

15]              The file be consigned to Record Room, after completion.

Pronounced.

26.07.2022

 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

        [PADMA PANDEY]

MEMBER

       

 

 

[RAJESH K. ARYA]

MEMBER

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