Chandigarh

DF-I

CC/731/2022

DARSHNA - Complainant(s)

Versus

BCL HOMES LIMITED - Opp.Party(s)

AMMISH GOEL

05 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/731/2022
Date of Institution	:	17/08/2022
Date of Decision	:	05/10/2023

Darshna w/o Sh. Avtar Singh r/o Village Shingariwala, District SAS Nagar, Mohali, Punjab.

… Complainant

V E R S U S

1. BCL Homes Limited, through its Director/Additional Director/Authorized Signatory, having its Registered office at SCO No.140, Railway Road, Village-Daria (U.T), Chandigarh.

    IInd Address :

    Site Office : Village :- Kishanpura, NAC Zirakpur, District SAS Nagar, Mohali, Punjab.

2. Baldev Chand Bansal, Director, BCL Homes Limited, Village:- Kishanpura, NAC Zirakpur, District SAS Nagar, Mohali, Punjab.
3. Tejinder Bansal, Director, BCL Homes Limited, Village :- Kishanpura, NAC Zirakpur, District SAS Nagar, Mohali, Punjab.
4. Rajeev Kumar, Additional Director, BCL Homes Limited, Village :- Kishanpura, NAC Zirakpur, District SAS Nagar, Mohali, Punjab.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                                       

ARGUED BY	:	Sh. Ammish Goel, Advocate for complainant
	:	Ms. Niharika Goel, Advocate Proxy for Sh. Paras Money Goyal, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Darshna, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that in the year 2011, OPs through various publications, publicity and assurances, floated a scheme for allotment of residential plots in their upcoming project namely “Chinar World”, (hereinafter referred to as “subject project”).   It was also informed to the complainant by the OPs that they had already obtained all the necessary permissions/approvals required for launching the project. Allured by such advertisement and assurances, complainant booked a residential plot of 200 sq.yards (hereinafter referred to as “subject plot”) @ ₹13,000/- per sq. yard in the said project.  The basic sale price of the subject plot was ₹26,00,000/-, out of which complainant had paid an amount of ₹2,60,000/- vide receipt dated 17.6.2011 (Annexure C-1).  The next installment was to be paid after launching of the project.  However, when the complainant approached the OPs about the launching date of the project as well as about execution of the buyer’s agreement, they lingered the matter on one pretext or the other.  Finally, the complainant was shocked to know that no project had ever been launched by the OPs.  Accordingly, the complainant requested the OPs to either allot the plot or refund the amount alongwith interest, but, with no success. Ultimately, the complainant vide representation dated 25.7.2022 (Annexure C-2) requested the OPs to refund the amount, but, with no success. OPs have violated the provisions of Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred to as “PAPRA”) as they had collected huge amount from the consumers without obtaining requisite approvals/licences from competent authority and thereby cheated them. In this manner, aforesaid acts of OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, limitation, complainant does not fall under the definition of a consumer and further that the amount has already been refunded way back. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.

1. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that she had booked the subject plot with the OPs by paying the booking amount of ₹2,60,000/-, as is also evident from the receipt (Annexure C-1) and the OPs have failed to launch the subject project or refund the amount, the case is reduced to a narrow compass as it is to be determined if the complainant had booked the subject plot with the OPs by paying an amount of ₹2,60,000/- as booking amount, out of the total sale consideration, and the OPs have received the said amount without obtaining the approvals/sanctions etc. from the concerned authorities and thereby violated the provisions of PAPRA, and the said act of the OPs amounts to deficiency in service and unfair trade practice and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed. 
   2. As per the case of complainant, she had paid the booking amount to the OPs vide receipt dated 20.6.2021 (Annexure C-1), but, even after receiving the said amount, without obtaining the necessary permissions/approvals etc. from the competent authorities, OPs have neither developed the area nor offered possession of the subject plot to the complainant, within the stipulated period, which amounts to deficiency in service and unfair trade practice on their part.
   3. However, to counter these allegations made by the complainant, OPs have failed to lead any evidence that they have developed the project on the spot and also that they have obtained the necessary permissions/approvals from the competent authorities for launching the project before accepting huge amount from the complainant on account of sale of the subject plot to the complainant.
   4. It is settled law that collecting money from prospective buyers and selling plots/units in the project, without obtaining required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

5. In this regard, reliance can also be placed on the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 5.7.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of builder and in those cases, allottees are well within their rights to seek refund of amount paid. The above view 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 Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
6. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

7. So far as the defence of the OPs that the consumer complaint of the complainant is barred by limitation is concerned, when it has come on record that the possession of the fully developed flat/plot was not offered to the complainant, within the stipulated period, there is continuing cause of action in favour of the complainant.  It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
8. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4. In the light of the aforesaid discussion, the captioned consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refunded the deposited amount of ₹2,60,000/- to the complainant alongwith interest @ 9% per annum from the date of deposit i.e. 20.6.2011, till payment.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject plot shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹25,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 05/10/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member