Complaint Case No. 760 of 2016. Case: Lalit Gulati Vs Puma Realtors Private Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission

Case NumberComplaint Case No. 760 of 2016
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 - Sections 32, 8; Code of Civil Procedure, 1908 (CPC) - Sections 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 DateMarch 28, 2017
CourtUnion Territory State Consumer Disputes Redressal Commission

Order:

Dev Raj, Member, (Chandigarh)

  1. The facts, in brief, are that allured by numerous advertisements in various newspapers and assurances, the complainant applied for allotment of a residential plot in the project of the Opposite Parties namely, 'IREO HAMLET' in Sector 98, SAS Nagar, Mohali. A Plot Buyer's Agreement was executed between Opposite Party No. 1 and Mr. Lalit Gulati, complainant and Mr. Mohinder Kataria on 07.07.2011, which was later endorsed in favour of Mr. Lalit Gulati on 01.04.2015. The basic sale price of the plot was Rs. 57,17,140/- excluding External Development Charges (EDC). The complainant, in all, paid a sum of Rs. 35,47,434/-. The complainant opted for Time Linked Payment Plan, according to which, he was required to pay 95% of the total sale consideration within 18 months from the date of booking and the remaining 5% was to be paid on delivery of possession. Thereafter, without any request for any change in the location of plot, the Opposite Parties arbitrarily changed the location of originally allotted plot i.e. Plot No. 345 measuring 259.87 sq. yard to Plot No. 119 measuring 250.59 sq. Yard, as per letter (Annexure C-3). The complainant agitated the change of location of plot vide email dated 17.11.2014 (Ann.C-4).

  2. It was further stated that on visiting the site, the complainant was shocked to see that there was no development and even the roads dividing Sectors 86-87 and approach road to reach the site were not there. Again on visiting in 2013, the complainant did not find any development at the site and several basic amenities and facilities were lacking, in as much as, there was no boundary wall, no overhead tanks or water linkage to the project, no club house building, green belt was yet to be developed and there was no arrangement for water supply, sewerage, electricity etc.

  3. Relying upon the report of Local Commissioner dated 24.10.2015 appointed in the case of 'Abha Arora v. Puma Realtors Pvt. Ltd.' earlier decided by this Commission, it was stated that as per the said report, neither the Opposite Parties have completed development and basic amenities at the site nor they were having all the necessary sanctions/approvals from the competent authorities uptil October 2015. It was further stated that vide letter dated 29.06.2015 (Annexure C-6), the Opposite Parties intimated that they were making all efforts to closely follow up the complete development work of roads with the Government. In order to prove that the project severely lacked basic amenities and is not fit for habitation, the complainant has also annexed information obtained under RTI as Annexures C-7 to C-13).

  4. It was further stated that as per Clause 11.1 of the Agreement, possession of the plot was to be delivered by the Opposite Parties within 24 months from the date of its execution plus 6 months grace period. It was further stated that as per Clause 11.2, the Opposite Parties were to pay delay compensation to the complainant @Rs.50/- per sq. yard of the area of the said plot for every month of delay until the actual date fixed for handing over of possession. It was further stated that notice of possession dated 05.08.2015 (Annexure C-14) sent by the Opposite Parties did not mention about final demarcation and measurement of plot, without which possession could not be handed over. It was further stated that aforesaid possession letter has been issued in a hurried manner without bothering to complete all development work at the project. It was further stated that the Opposite Parties have not obtained completion-certificate till date as per RTI information (Annexure C-15).

  5. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to refund Rs. 35,47,434/- alongwith interest @18% per annum from the actual date of deposit; pay Rs. 10,00,000/- as compensation on account of mental agony and Rs. 50,000/- as litigation expenses.

  6. Opposite Party No. 1, in its written statement, took-up certain preliminary objections, to the effect, that the complainant acting under dishonest and malafide intentions concealed the fact that he after receipt of notice of possession agreed to get the conveyance deed of the plot, in question, executed as Opposite Party No. 1 agreed to bear the cost of Stamp Duty, Registration Charges etc. as is evident from email dated 06.01.2016. It was further stated that the complainant also concealed another material fact that he after the receipt of the aforesaid notice of possession with demand of Rs. 24,30,553/- towards balance consideration price of the said plot, got approved the loan of Rs. 25,00,000/- from HDFC Bank, as is evident from email dated 30.12.2015 and further vide email dated 25.02.2016, the complainant sought the documents from Opposite Party No. 1 for availing loan and thereafter the discrepancy in the format of Tripartite Agreement was cleared between the parties as per email dated 31.05.2016; that the complaint was liable to be dismissed, due to existence of arbitration Clause No. 33 in the Plot Buyer's Agreement dt. 07.07.2011; that since the present complaint related to enforcement of an agreement to sell/purchase of a residential plot i.e. an immovable property and hence, was not covered under the Act; that the allegations being of contractual nature were triable in a Civil Court and that the complainant did not hire any services of Opposite Party No. 1, as the parties did not enter into any contract for hiring the services and there is no agreement for payment of any amount towards consideration of hiring of the alleged services of Opposite Party No. 1. It was stated that neither the complainant had paid, nor had agreed to pay any amount towards hiring of the alleged services and whatever amount was paid or was agreed to be paid by the complainant was towards consideration price of the apartment in advance only to Opposite Party No. 1. Further objections were raised that the complainant did not book the plot for his personal use but for investment/commercial purpose; that this Commission has no territorial jurisdiction on account of existence of Clause 35 in the Agreement and that the relief claimed is beyond Section 14(1)(d) of the 1986 Act.

  7. On merits, it was stated that some of the payments were made by the complainant with delay and he utterly failed to make further payments as were demanded by Opposite Party No. 1 from time to time on achieving the specific milestone of development as agreed under the payment plan. It was further stated that the complainant did not adhere to the payment schedule, which was a breach of Clause No. 19.1 of the Agreement. It was further stated that the complainant vide recital No. 'K' of the said Agreement himself represented that he was not influenced by any kind of sales brochures, advertisements, representations, warranties etc. and he had relied upon his own independent investigations while deciding to purchase the plot, in question. It was denied that the complainant was assured that the possession would be handed over within a period of maximum 30 months from the date of execution of the Agreement. It was further stated that the complainant alongwith Mr. Moninder Kataria duly accepted the change of payment plan as they appended their signatures on the letter dated 29.06.2011 (Ann. OP-45) (in-fact, update letter dated 29.06.2015) in token of their acceptance. It was further stated that the complainant alongwith aforesaid Sh. Moninder Kataria jointly applied for allotment of plot and accordingly, Plot No. 345 was allotted to them and Agreement was executed. It was further stated that due to certain planning requirements, vide letter dated 30.10.2014 (Annexure C-3), Plot No. 119 was relocated to them in place of Plot No. 345 and the said relocation was duly accepted by the complainant since 50% share of Mr. Moninder Kataria was assigned in favour of the complainant as per their joint request and execution of necessary documents including but not limited to execution of the Indemnity-cum-Undertaking both dated 31.03.2015, affidavits both dated 21.03.2015, wherein both the complainant and Sh. Moninder Kataria categorically mentioned about their share in Plot No. 119 (Annexures OP-10 to OP-12). It was further stated that this material fact was concealed by the complainant from this Commission. It was further stated that Opposite Party No. 1 has completed the development works at site as mentioned in Clause 21.2 of the Agreement. It was further stated that the development at the site commenced on 01.05.2013 and was carried on in full swing in a continuous manner. It was further stated that the complainant having already been offered the possession of the developed plot, in question, as agreed under the Agreement, is contractually bound to accept the possession of the plot and to execute the conveyance deed thereof particularly in view of the fact that the complainant has not raised any issue or objection regarding development and basic amenities after the receipt of Notice of Possession.

  8. It was further stated that Opposite Party No. 1 is possessed of all the necessary approvals and permissions to sell, develop and offer possession of the plots to its allottees but not limited to the notification dated 14.08.2008 issued by Government of Punjab exempting the Opposite Parties from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short 'PAPRA 1995'). 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...

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