Consumer Complaint No. 555 of 2016. Case: Asha Viz Vs Puma Realtors Pvt. Ltd. and Ors.. Union Territory State Consumer Disputes Redressal Commission

Case NumberConsumer Complaint No. 555 of 2016
Party NameAsha Viz Vs Puma Realtors Pvt. Ltd. and Ors.
CounselFor Appellant: Rajat Chopra, Advocate and For Respondents: Ramnik Gupta, Advocate
JudgesJasbir Singh, J. (President), Dev Raj and Padma Pandey, Members
IssueArbitration And Conciliation Act, 1996 - Section 8; Code of Civil Procedure, 1908 (CPC) - Section 15, 16, 17, 18, 19, 20; Consumer Protection Act, 1986 - Sections 11, 13 (4), 14(1)(d), 17, 2 (1) (o), 2(1)(d), 2(1)(d)(ii), 2(1)(o), 3; Water (prevention And Control Of Pollution) Act, 1974 - Sections 25, 26
Judgement DateJanuary 12, 2017
CourtUnion Territory State Consumer Disputes Redressal Commission

Judgment:

Dev Raj, Member, (Chandigarh)

  1. The facts, in brief, are that on the assurance given by the Opposite Parties through various newspapers and advertisements that the development activity at the site of their project namely 'IREO HamLET', in Sector 98, SAS Nagar, Mohali, was in full swing and possession of the plot would be handed over within a maximum period of 30 months from the date of execution of the Plot Buyer's Agreement, the complainant applied for allotment of a residential plot measuring 307.77 Sq. Yards in the said project and paid a sum of Rs. 77,49,695/-, in all, uptill the date of the filing of the instant complaint, as per payment details (Annexure C-1). Plot Buyer's Agreement (Annexure C-2) was executed between the parties on 21.11.2011, as per which, the basic sale price of the plot, in question, was Rs. 76,94,250/- excluding External Development Charges (EDC) and Interest Free Maintenance Security (IFMS). As per the Payment Plan, 95% of the total sale consideration was to be paid within 18 months from the date of booking and the remaining 5% was to be paid on delivery of possession.

  2. It was further stated that on visiting the site, the complainant was shocked to see that there was no development and the same was the position in the year 2013 as there was still no development. It was further stated that even the roads dividing between Sectors 86-87 and approach road dividing sectors 97-98 to reach the site were not there. It was further stated that the Opposite Parties verbally intimated that they were making all efforts to closely follow-up the complete development work of roads with the government and the contractor had begun mobilization at site. It was further stated that the colony/project severely lacks basic amenities and facilities, in as much as there is no boundary wall, no overhead tanks or water linkages to the project, no club house building, green belt is yet to be developed and there is no arrangement for water supply, sewerage, electricity etc.

  3. It was further stated that the complainant requested the Opposite Parties to provide necessary approvals/permissions, regarding basic amenities/PHE services but they did not bother to reply. It was further stated that the complainant was, thus, not only deprived of the use of her hard earned money for long time but also suffered a lot of mental agony, physical harassment and financial loss in the absence of delivery of plot. It was further stated that notice of possession dated 12.05.2015 was issued to the complainant in a hurried manner without completing development and basic amenities at the site. It was further stated that the project severely lacks basic amenities at the site and is not fit for habitation, as per information obtained under RTI from various authorities (Annexures C-6 to C-11). Some of the deficiencies pointed out are non-provision of electricity connection, non-sanction of regular permanent electricity load for residential purpose, no arrangement for water supply, overhead tanks, non-provision of sewerage and storm water drainage lines in sector-dividing roads in new sectors which are being developed. The complainant, referring to Clause 20.1 of the Plot Buyer's Agreement has stated that she was entitled to receive refund of the installments alongwith interest at the rate of 7.5% per annum. It was further stated that the complainant sent legal notice dated 20.06.2016 (Annexure C-12) for termination of the Agreement and demand of amount, but to no avail. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

  4. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs. 77,49,695/- alongwith interest @ 18% per annum from the actual date of deposit, Rs. 10,00,000/- as compensation on account of mental agony & physical harassment and Rs. 50,000/- as cost of litigation.

  5. The Opposite Parties, in their joint written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No. 33 in the Plot Buyer's Agreement dated 21.11.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainant did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that the complainant did not book the plot for her personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. Apart from above objections, a specific objection with regard to the territorial jurisdiction of the Commission on account of existence of Clause 35 in the Agreement has been raised stating that the Courts at Mohali and the Punjab & Haryana High Court at Chandigarh alone had the jurisdiction.

  6. On merits, while admitting the factual matrix of the case, the Opposite Parties stated that the complainant wilfully defaulted in making timely payments as she had not adhered to the payment schedule. It was further stated that the complainant blatantly violated Clause 19.1 of the Agreement with impunity. It was denied that the complainant was ever given any assurance that construction at the site was in full swing and possession would be given in 30 months from the date of execution of the Agreement. It was stated that as per agreement, a sum of Rs. 1275.10 per sq. yard towards EDC and Rs. 350/- per sq. yard on account of IFMS were to be paid by the allottee towards the sale consideration price of the plot measuring 307.77 sq., yards, in question, and the total consideration price agreed to be paid by the complainant was Rs. 81,94,407.02. It was admitted that the development of the site commenced on 01/05/2013 and after due development of the site, Opposite Party No. 1 started offering possession of the plots w.e.f May 2015. It was denied that after 2013, there was no development at site. It was further stated that development work, as per Clause 21.2 of the Agreement, was duly carried out within the periphery of the project to the extent mentioned in the said clause and external development works were to be executed by the State Authorities, for which, Opposite Party No. 1 had deposited the requisite EDC charges with the said authorities. It was further stated that Opposite Party No. 1 was to carry out internal development works only and development of the sector roads/access roads was to be provided by the State Government. It was further stated that even the report of Local Commissioner filed in complaint titled 'Abha Arora v. PUMA Realtors Pvt. Ltd. and another', bearing No. 170 of 2015, clearly unveils the false allegations made by the complainants.

  7. It was further stated that Opposite Party No. 1 has been granted exemption from all the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short 'PAPRA 1995') by the competent authorities vide notification dated 14.08.2008 and it was/is not under any obligation to obtain the completion certificate under PAPRA 1995. It was further stated that Opposite Party No. 1 had obtained all the necessary approvals and permissions from the competent authorities. It was further stated that NOC for withdrawal of ground water was granted on 19.08.2011, environmental clearance was granted on 30.11.2012; NOC by Punjab Pollution Control Board was granted on 14.05.2013, which was then extended vide letters dated 09.12.2014, 29.06.2015 & 20.07.2016; service plans were approved on 18.05.2015; revised layout plans were approved on 15.05.2013; NOC by PSPCL was granted on 08.07.2015; approval for commissioning of electrical installation was accorded on 07.08.2015; consent to operate was granted by Punjab Pollution Control Board on 05.01.2016 and Bank Guarantee was submitted to PSPCL on 22.03.2016. It was further stated that the possession was to be offered within 42 months from the date of execution of the Agreement and the said 42 months period expired on 20.05.2015, whereas the notice of possession of the developed plot was offered on 12.05.2015. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong. (In the written statement, Opposite Party No. 1 has specifically stated that Opposite Party No. 2 is its authorized signatory, who had merely executed the Plot Buyers Agreement dated 22.11.2011 on behalf of Opposite Party No. 1. It was further stated that Opposite Party No. 2 is not personally responsible for the acts of Opposite Party No. 1 and he has wrongly been arrayed as party in the complaint).

  8. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.

  9. The complainant filed rejoinder, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

  10. The Opposite Parties, in support of their case, submitted the affidavit of Shri Rohit Tanwar, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached.

  11. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.

  12. It is evident, on record, that Plot No. 272 in the residential project "IREO Hamlet" admeasuring 307.77 sq. yard, Sector 98, SAS Nagar, Mohali, was allotted to the complainant, Basic Sale Price whereof was Rs. 25,000/- per sq. yard...

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