Primary Estates & Developers Consumer RERA Complaint

In this post we will discuss about Consumer complaint against Primary Estates & Developers wherein the opposition party were held liable and was directed to refund the amount of Rs.37,51,000/- to the complainant, alongwith interest @12% p.a. (simple) from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order

Also Read- State Consumer Disputes Redressal Commission

Prem Pal Sharma vs M/S Primary Estates And … on 19 January, 2018

State Consumer Disputes Redressal Commission

The following article talks about the state Consumer Dispute Redressal Commission and its jurisdiction and working. The state dispute redressal commission as stated under Section 9(b) of the Consumer Protection Act, 1986 which states that-

A Consumer Disputes Redressal Commission to be known as the “State Commission” established by the State Government in the State by notification;

“consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.

In the case of Gurmeet Singh Jogar vs Primary Estates & Developers …[1] the questions pertaining various facts such as definition of consumer, as to who is a consumer and who can be the limitations as to the Consumer forums of state.

Also Read- NCDRC, RERA, NCLT: Who Should a Homebuyer Approach?

Facts

In the following case the complainant had filed a complaint in the state forum regarding refund of amount of Rs.37,51,100/-, paid by him, from time to time towards purchase of an independent floor in a project launched by the opposite parties, under the name and style ‘Arcadia Dream Homes”, Sector 116, SAS Nagar, Mohali, Punjab total sale price whereof was fixed at Rs.33,95,000/-. It is the case of the complainant that despite the fact that substantial amount, referred to above, had been paid to the opposite parties, yet, they failed to deliver possession of the said unit by 28.12.2016 i.e., within a period of two years as per Clause 17 (a) of the agreement dated 29.12.2014 for lack of construction and development works at the project site. It has been stated that neither possession of the unit, in question, was delivered by the stipulated date nor compensation by way of monthly assured return, as promised by the opposite parties, was paid to the complainant. Alleging the aforesaid act and conduct of the opposite parties as deficiency in providing service and adoption of unfair trade practice, this complaint was filed by the complainant seeking directions to the opposite parties to deliver possession of the unit, in question, along with interest, compensation; litigation expenses etc.

Also Read- State Consumer Disputes Redressal Commission

Jaspreet Kaur vs Dara Estates Pvt. Ltd. on 3 July, 2019

In the case the first question was whether, the complainant in the pertaining case is a ‘consumer’. As stated under Section 1(d) of the Consumer Protection Act, 1986 as-

consumer means any person who, —

buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under anysystem of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person¹³ [but does not include a person who avails of such services for any commercial purpose];[2]

Also Read- Complaint filed before Consumer Fora against builder is not barred by RERA

The opposition party stated that the Commission did not have jurisdiction to entertain this complaint and the matter needs to be relegated to Civil Court; that the complaint filed is beyond limitation and that the opposite parties never refused to deliver possession of the unit in question.

In the matter of fact, the complainant moved to the Civil Court miscellaneous application bearing no.730 of 2019, whereby he sought amendment of prayer clause i.e. instead of seeking delivery of possession of the unit in question, the complainant has prayed for refund of the amount paid, along with interest, compensation etc.,

ALSO READ- CONSUMER COMPLAINT AGAINST JAGRAN DEVELOPER

Judgement

The foremost, the court stated that the opposite party has no documentary evidence which is substantiating the fact. The case of Kavit Ahuja vs. Shipra Estates[3]but since they failed to discharge their onus, hence, we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act. It is not in dispute that the complainant had paid an amount of Rs.37,51,100/- towards purchase of the unit referred to above, possession whereof was to be delivered on or before 28.12.2016i.e., within a period of two years, as per Clause 17 (a) of the agreement dated 29.12.2014.

In the present case, it was found that there has not been an iota of evidence about the delay in the project. Furthermore, there is nothing on record to show that the opposite parties suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit in question was not delivered to the complainant by the promised date.

Also Read- How to file a Complaint in Consumer Court against Real Estate Developer ?

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 from the very inception, there was intent to induce the complainant to enter into the contracts by way of signing agreement, referred to above, and also intent to mislead him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

Therefore, the following complaint is maintainable by the State Consumer Forum, and along with Sec 3 of the Consumer Protection Act, 1986 even through the complaint moved to the Civil Court, they can still claim compensation by the Consumer Court. By these reasons, the opposition party were held liable and was directed to refund the amount of Rs.37,51,000/- to the complainant, alongwith interest @12% p.a. (simple) from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.37,51,000/- shall carry interest @15% p.a. (simple) from the date of default i.e., after expiry of period of 30 days till realization.

ALSO READ- HARYANA RERA PANCHKULA COMPLAINT AGAINST RAHEJA DEVELOPERS

Cases Cited

In the case of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs Trevor D’ Lima & Ors[4]. wherein, the nuances of non-delivery of possessions were talked about. Along with this, Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr.,[5] decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a.

Meerut Development Authority Vs. Mukesh Kumar Gupta,[6] wherein, it was stated that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount.

ALSO READ- CONSUMER COMPLAINT AGAINST JINDAL REALTY (P) LIMITED SONEPAT

Conclusion

Therefore, it was held in the case that the State commission forum is the entity of the state government with the pecuniary jurisdiction of 20 lakh rupees, along with this the definition of a consumer was also broadened and the consideration of physical compensation and mental agony. The matter of interest is also taken into consideration.

Also Read- Latest RERA Punjab Judgments & Orders

This post is written by Tanya Gorshi

For case specific advice, please contact best/top/expert Real Estate Lawyers taking up cases of real estate disputes in Chandigarh Panchkula Mohali Zirakpur Baltana Kharar Mullanpur etc.

This post is written by Aman Dube.