In this post we will discuss about Consumer Complaint against Preet Land Promoters & Developers Pvt. Ltd wherein the court ordered to give physical possession of plot bearing No.403(A), measuring 250 sq. yards, Sector 86, S.A.S. Nagar, Mohali with developed roads, sewer, water and electricity lines etc. complete in all respects within a period of two months from the date of receipt of certified copy of this order, subject to balance sale consideration, if any, without interest and penalty; and to pay Rs.40,000/- as compensation on account of mental agony and harassment as well as litigation expenses
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Complaint to Direct Opposite parties to handover the physical possession or pay interest on the amount deposited with compensation
Facts of the Case
Sudha Gupta w/o Sh.B.M.Gupta R/o, Gomti Nagar, Lucknow.
….Complainant
Versus
- Preet Land Promoters & Developers Pvt. Ltd., having its site
Office at Sector -86, SAS Nagar, Mohali through its Director.
- Charan Singh Saini, Director, Preet Land Promoters &
Developers Pvt. Ltd. Site office, Sector -86, SAS Nagar, Mohali.
- Kanwaljit Singh, Director, Preet Land Promoters & Developers
Pvt. Ltd., Site office, Sector -86, SAS Nagar, Mohali.
- Balbir Singh, Additional Director, Preet Land Promoters &
Developers Pvt. Ltd. Site office, Sector -86, SAS Nagar, Mohali.
- The Akash Co-operative House Building Society Limited, Site
Office-86, Adjacent to Sector 79, S.A.S. Nagar, Mohali .
….Opposite parties
- The complainant had filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short ‘the Act’) seeking following directions to the opposite parties:
- to handover the physical possession of above said plot complete in all respect with all amenities within two months;
- to pay interest at the rate of 13% on the deposited amount from the respective dates of deposits;
- to start making the monthly delay payments for the period for which the plot is not offered for possession with the due amenities.
OR d. to refund the entire amount along with interest at the rate of 13% per annum from the date of deposit till the date of refund;
- to pay compensation to the tune of Rs.1,00,000/- on account of mental agony and harassment; f. to pay Rs.1,00,000/- as cost of litigation.
- The Complainant enrolled herself as a member with opposite party No.5 in the year 2006 and paid a sum of Rs.5110/- vide receipt No.2745 as Membership Fee. After becoming a Member, the complainant also paid an amount of Rs.5,75,000/- towards the cost of land for a 10 Marla plot at the rate of 10,500/- per sq. yard to opposite party No.5. On 03.04.2007, a Certificate of Registration/Membership was issued to the complainant by opposite party No.5, wherein she was given Membership No.775.
- The complainant further received a Letter of Intent by opposite party No.5 intimating therein that society has entered into an agreement with opposite party No.1 to develop land as per PUDA/GMADA norms and to allot the developed residential plots to the Members in Sector -86, SAS Nagar, Mohali.
- The complainant deposited Rs.2,00,000/- against receipt No.5070, Rs.1,80,000/- against receipt No.3523, Rs.1,75,000/- against receipt No.3524, Rs.20,000/- against receipt No.3525. It had been further averred that despite depositing of total cost of the plot and EDC neither allotment letter nor physical possession was given to the complainant.
- The opposite party No.1 issued an Allotment Letter dated 04.03.2016 to the complainant stating therein that she has been provisionally allotted plot No.403-A, measuring 10 Marla, in Sector 86, SAS Nagar, Mohali. She was further assured that physical possession of the plot would be handed over to the complainant within 3 to 4 months.
- The opposite party No.1 had not handed over the possession to the complainant even after the lapse of more than 12 years.
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Issues Involved
- It was argued by theOpposite parties No.1 & 2 that the complainant was an investor and due to recession in the property business she does not want to continue to go with the purchased property in the sector of answering opposite parties.
- Whether the complaint was barred by limitation.
- Was the development works of the plot promised by the Opposite parties carried out in accordance with the lay-out plan sanctioned by the Chief Town Planner, Punjab (Competent Authority) and what steps were taken by the Opposite parties to get basic facilities from the GMADA.
- No outer date was given in the allotment letter promising an possession date, then what could be taken as a reasonable time?
- Whether, the complainant is entitled to any other amount towards delay in delivery of possession of the unit in question and if yes, then who will be liable to comply the directions issued or to pay the refund/compensation on account of delay on the part of the opposite parties.
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Judgements quoted on the settled law
- Hon’ble Supreme Court of India in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. V. DLF Southern Homes Pvt. Ltd.
Wherein, while discarding the one-sided terms of the Buyer’s Agreements, simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit has been awarded
- Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme court
Supreme Court in the above noted cases, we are of the view that the provision of penalty @ Rs.5/- per square feet per month of the super built-up area of the unit in question as per Clause 14 (d) of the agreement, which comes around between 2% to 2.5% p.a. only, is not sufficient to compensate the complainant for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by him on account of delay of more than 2 years in delivery of possession of the unit in question. Therefore, in addition to aforesaid penalty @ Rs.5/- per square feet per month of the super built-up area of the unit in question, after the expiry of stipulated date of delivery of possession, the complainant is also entitled to simple interest @ 6% per annum on the entire amount deposited by him from due date of possession till the date when possession had been delivered to the complainant.
- Hon`ble National Commission, in consumer case no.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited
It was observed as under:-
“If some of the allottees had not made timely payment, it was for the opposite party to arrange the requisite finance either by taking loan or from its own resources or by liquidating Inventory at a lower price”.
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Findings of the Court
- The State Commission while deciding on the issue, if the Complainant is an Investor or an Consumer mention that there was no cogent evidence from the side of the opposite parties No. 1 & 2 to prove that the complainant is an investor or was indulging in sale/purchase of property for commercial purpose or booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit and simple assertion in this regard in the reply of the opposite parties No.1 & 2 is not sufficient to prove this fact and therefore the Complainant was an Consumer.
- The State Commission stated that It wasa well settled that in such cases there is a continuous cause of action till the possession is delivered. Hon’ble National Commission has held that unless or until the complainants get possession of the flats, they have got continuous cause of action.
- While examining if the Opposite parties had done enough to complete the development of the property in question and whether they had taken steps to get basic amenities, Opposite No.1 & 2 to prove their bonafide has placed on record Letter of Change of Land Use (CLU) issued from Department of Housing and Urban Development on 28.12.2006 (Ex.OP-2). Further, they placed on the record another notification dated 13.10.2009 (Ex.OP-3), vide which Ops No.1&2 was exempted under Section 44 of the PAPRA subject to following conditions:-
- The promoter acquires the entire project land in its name including land under agreement to develop and requested to be acquired by Government.
- The promoter shall be responsible for obtaining the Final NOC from Punjab Pollution Control Board.
- The development works shall be carried out in accordance with the lay-out plan sanctioned by the Chief Town Planner, Punjab (Competent Authority)
The State Commission found that The Opposite parties had not tendered any document in their evidence to prove that above mentioned conditions have been complied with. Mere notification issued by the Government is not sufficient to prove that the opposite parties had complied with the conditions.
Even with regard to Approval of Revised Layout Plan of M/s Preet Land Promoters and Developers Pvt. Ltd., which was also subject to various terms and conditions, the opposite parties No.1 & 2 had failed to place on record any document to prove whether those terms and conditions had been complied with.
…The Commission held that the opposite parties No.1 & 2 failed to prove on record that what efforts they made to get the basic facilities from the GMADA…
- While deciding on Date of Possession, The Commission found that the opposite parties have not placed on record any document showing the final date as to when the possession will given. The Commission by going with the precedents applied that in case no outer date is given in the allotment letter then it could be taken as a reasonable time, which can be 3 years and in the instant case opposite party No.1 have issued allotment letter in the year 2016 then the plot should have been developed and its possession should have been offered to the complainant within a period of 3 years.
- The Commission decided that the opposite parties had failed to deliver the possession of the unit, in question, to the complainant within the stipulated period, without any sufficient cause and, thus, the complainant was entitled for the relief as claimed in her complaint along with interest and compensation.
While Deciding the liability, The Commission observed after going through the records that no agreement was entered into between the opposite parties to fix the liability of any of the party, rather all the parties were receiving the payments from the complainant.
In the present case, opposite party No.5 issued the Membership to the complainant. Later, opposite party No.5 got merged in opposite party No.1, accordingly opposite party No.5 stepped into the shoe of opposite party No.1. Moreover, opposite party No.1 has issued the allotment letter to the complainant and opposite parties No.2 to 4 are the Directors of opposite party No.1 who are performing the functions of administrative as well as financial on behalf of opposite party No.1. Therefore, The State Commission were of the view that all the opposite parties are jointly and severally liable to comply the directions to be issued to the opposite parties.
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Conclusion
The State Consumer Disputes Redressal Commission after going through the facts of the matter and after listening to the arguments of both the parties held that the opposite parties have failed to deliver the possession of the unit, in question, to the complainant within the stipulated period, without any sufficient cause and, thus, the complainant was entitled for the relief as claimed in her complaint along with interest and compensation.
In view of the above discussion, the complaint was allowed and the following directions were issued to the opposite parties:-
- To give physical possession of plot bearing No.403(A), measuring 250 sq. yards, Sector 86, S.A.S. Nagar, Mohali with developed roads, sewer, water and electricity lines etc. complete in all respects within a period of two months from the date of receipt of certified copy of this order, subject to balance sale consideration, if any, without interest and penalty; and
- To pay Rs.40,000/- as compensation on account of mental agony and harassment as well as litigation expenses;
In case the opposite parties fail to deliver the possession within two months, as ordered above, then in the alternative
- To refund the entire deposited amount along with interest at the rate of 12% per annum from respective dates of deposits till realization, as per Rule 17 of PAPRA;
- To pay Rs.40,000/-, as compensation on account of mental tension and harassment suffered by the complainant and towards litigation expenses. Consumer Complaint No.159 of 2019.
For case specific advice about consumer Complaint against builders like Preet Land Promoters & Developers Pvt. Ltd for Delay in Possession, homebuyers can contact best top real estate Punjab RERA Authority Lawyers Advocates for Legal Advice in Chandigarh Panchkula Mohali Derbassi Zirakpur Kharar.
This post is written by Apoorva Gupta.
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