Chandigarh

StateCommission

CC/227/2019

Mr. Lekh Raj Kamboj - Complainant(s)

Versus

Emerging India Housing Corporation Pvt. Ltd. - Opp.Party(s)

Karamveer Singh & Dharamveer Banyal Adv.

19 Apr 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	227 of 2019
Date of Institution	:	03.10.2019
Date of Decision	:	19.04.2021

 

Lekh Raj Kamboj S.o Sahib Dita Ram r/o House No.B-540, Basti Hazoor Singh, Fazilka, Punjab 152123.

 

……Complainant

V e r s u s

1. Emerging India Housing Corporation Pvt. Ltd., through its Managing Director.
2. Mr. Gurpreet Singh Sidhu, Director, Emerging India Housing Corporation Limited.
3. Mr. Kamaljit Singh, Director, Emerging India Corporation Pvt. Ltd.
4. Sushil Kumar, Director, Emerging India Housing Corporation Pvt. Ltd.  

Address : SCO No.46-47, First Floor, Sector 9-D,                            Chandigarh.

Email ID : info@emergingindia.in

                                                             .... Opposite Parties

Argued by (through Video Conferencing):            

Sh. Karamveer Singh, Advocate for the complainant.

Sh. J.S.Rattu, Advocate for Opposite Parties No.1 & 2.

Opposite Party No.3 exparte vide order dated 26.02.2020.

Sh. Parshant Sethi, Advocate for Opposite Party No.4.

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Complaint case No.	:	246 of 2019
Date of Institution	:	05.11.2019
Date of Decision	:	19.04.2021

 

Purushotam Sood S/o Sh.Nanak Chand Sood, aged about 49 years, r/o Maharaj Karyana Store, P.O. Sultanpur, District Kullu (HP).

 

……Complainant

V e r s u s

1. M/s Emerging Valley (P) Ltd., having its Regd. Office at SCO No.46-47, Sector 9-D, Chandigarh, through its Managing Director.
2. M/s Emerging India Housing Corporation (Pvt.) Limited having its Regd. Office at B-57, Lower Ground, South Extension Part-2, New Delhi 110049, through its Managing Director.  

Also at : House No.317, Sector 21-A, Chandigarh.

                                                             .... Opposite Parties

Argued by (through Video Conferencing):            

Sh. Vikas Kuthiala, Advocate for the complainant.

Sh. J.S.Rattu, Advocate for Opposite Parties.

 =============================

Complaint case No.	:	70 of 2020
Date of Institution	:	09.03.2020
Date of Decision	:	19.04.2021

 

1. Aditya Sunkaria S/o Gobind Sunkaria r/o H.No.86, Street No.1, Guru Ramdas Nagar, Kot Khalsa, Amritsar 143002.

 

2. Ms. Supriya Sunkaria @ Supriya Bhardwaj W/o Aditya Sundaria R/o H.No.86, Street No.1, Guru Ramdas Nagar, Kot Khalsa, Amritsar 143002.

 

……Complainants

V e r s u s

1. Emerging Valley Pvt. Ltd., through its Managing Director.
2. Sh.Gurpreet Singh Sidhu, Director, Emerging Valley Pvt. Ltd.
3. Emerging India Housing Corporation Pvt. Limited through its Managing Director.
4. Mr.Gurpreet Singh Sidhu, Director, Emerging India Housing Corporation Pvt. Ltd.      

     Address : SCO No.46-47, First Floor, Sector 9-D, Chandigarh.                   Email ID : Ei.md@hotmail.com                                                                                                                 .... Opposite Parties

BEFORE:         JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR.RAJESH K. ARYA, MEMBER

                       

Argued by (through Video Conferencing):            

Sh. Karamveer Singh, Advocate for the complainants.

Sh. J.S.Rattu, Advocate for Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                By this order, we propose to dispose of the aforesaid three consumer complaints bearing Nos.227/2019, 246/2019 & 70 of 2020. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

                   Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.227 of 2019 titled as Lekh Raj Kamboj Vs. Emerging India Housing Corporation Pvt. Ltd.

2.                The facts in brief are that the complainant approached the Opposite Parties on 10.07.2011 and applied 3 BHK, which was allotted bearing Flat No.D-601, 6^th Floor, Tower D at the said project namely Emerging Heights III situated at Sector 115, Greater Mohali, having total super area of 1605 sq. feet. The total price of the unit was Rs.41,30,550/-, out of which, the complainant deposited a sum of Rs.36,67,750/-. The complainant opted for Construction Linked Schedule Payment Plan and provisional allotment letter dated 19.11.2012 was issued by the Company, which was duly signed by him and the same was kept with the local office at Fazilka but the same was never returned to him even after visiting the local office of the Opposite Parties. It was further stated that almost after three years, another provisional allotment letter dated 14.05.2014 (Annexure C-2) was issued and payment plan was changed without intimating or discussing with him.  After delaying the matter for another two years, finally, Buyer’s Agreement was executed on 09.03.2016 (Annexure C-4). As per Article 5.1 of the Agreement, possession was to be delivered within 15 months from the date of execution of the Agreement i.e. latest by 08.06.2017. It was further stated that on 16.03.2019, the Opposite Parties forced the complainant to accept another flat bearing No.A-304, third floor, Tower A in the same society, which was accepted after payment of Rs.98,550/- on the spot but despite receipt of the huge amount, the Opposite Parties failed to deliver possession of the unit, in question.   It was further stated that the aforesaid acts, on the part of builder, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act (in short the ‘Act’ only), was filed.

3.                Opposite Parties No.1 & 2 in their written version has taken objection that this Commission has no jurisdiction to entertain the complaint as it has been specifically mentioned in Clause 36 of the Agreement that all the disputes shall be referred to an Arbitrator to be appointed as per the provisions of Arbitration and Conciliation Act, 1996. It was stated that the complainant is not maintainable due to non-joinder of the necessary party as he has not made the registered office of the Company as party. It was further stated that the complainant did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, as he purchased the said unit for investment purpose only because he is permanent resident of Fazilka, Punjab. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint as the flat was booked at Fazilka, payment were made at Fazilka and he is resident of Fazilka and the project is at Kharar Landran Road, District Mohali. It was further stated that with regard to basic amenities, this Commission had attached the whole project and development work as well as the construction work suffered, which was not in the hands at the replying Opposite Parties. It was further stated that the complainant was offered possession of the unit but he did not take it. It was further stated that the possession was still ready and the complainant could take the same.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice.

4.                Opposite Party No.3 did not appear, despite service. Hence, he was proceeded against exparte vide order dated 26.02.2020.

5.                Short reply by way of affidavit of Sh. Sushil Kumar, Director, Emerging India Housing Corporation Pvt. Ltd. filed by Opposite Party No.4, in which, it has been stated that he had submitted his resignation vide letter dated 17.04.2019 i.e. before the institution of the present complaint on 07.10.2019 and the same was accepted by the Board of Directors of the Company (Annexure A-1) and the present Directors are Opposite Parties No.2 & 3. It was further stated that Opposite Party No.4 was a non-executive Director in the Company and has never been in charge and control of the affairs of the said Company in any manner whatsoever during his tenure and as such, prayed for dismissal of the complaint qua Opposite Party No.4.

6.                The Parties led evidence, in support of their case.

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

8.                First of all, coming to the objection raised with regard to existence of Arbitration clause contained in the Agreement, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the Opposite Parties in this regard stands rejected.

9.         The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined in the Act as he is permanent resident of Fazilka, as such, purchased the said unit in the project of the Opposite Parties purely for investment purposes.  After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected because the complainant has specifically mentioned in his complaint that “he has retired from the position of Assistant Executive Engineer from Punjab State Power Corporation Limited and after retirement he wanted to settle in the vicinity of Chandigarh for better medical facilities and security purposes as compared to Basti Hazoor Singh, Fazilka.” Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion i.e. simply saying that the complainant purchased the property for investment/speculation purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in the aforesaid case, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 2, in their written reply, therefore, being devoid of merit, is rejected.

10.              The next question, that falls for consideration, is with regard to non joinder of necessary party i.e. the registered office of the Opposite Parties is concerned, it is submitted that not even a single document has been placed on record by the Opposite Parties to show any alleged registered office of the company or any communication by the complainant with the registered office. Even all the correspondence between the parties have taken place from their Chandigarh Office. So, the said objection raised by Opposite Parties No.1 & 2 stands rejected.

11.              The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. In the instant case, it is evident from the record, that the complainant annexed the documents i.e. Annexures C-1 to C-3 & C-5 (receipts/provisional allotment letter & Agreement etc.) were sent by the Opposite Parties from their Chandigarh Office, as the aforesaid documents bore the address as “SCO 46-47, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh – 160009” Even Apartment Allottee(s) Arrangement was executed between the parties on 09.03.2016 at Chandigarh. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

12.              With regard to the deletion of the name of Opposite Party No.4 from the array of the parties is concerned, it may be stated here that Opposite Party No.4 resigned from the post on 17.04.2019 i.e. before the institution of the complaint and prior to that he was an active Director in the affairs of the Company, therefore, Opposite Party No.4 is equally liable to compensate the same to the complainant. Therefore, the said objection taken by Opposite Party No.4 stands rejected.

13.              The next question that falls for consideration before us is as to whether the Opposite Parties offered possession of the unit, in question, to the complainant complete in all respects or not. Opposite Parties No.1 & 2 in their written statement have submitted that they offered possession of the unit to the complainant but he failed to accept it but after perusal of the record, we found that nothing has been placed on record by Opposite Parties No.1 & 2 with regard to possession to the complainant. Admittedly, the complainant booked 3 BHK unit in the project of the Opposite Parties in the year 2011 and flat No.D-601, 6^th Floor, Tower D in the said project namely Emerging Heights III situated at Sector 115, Mohali and paid the total amount of Rs.36,67,750/-. According to the complainant, the Opposite Parties issued provisional allotment letter dated 19.11.2012, which was signed by him but no copy is available with him. Thereafter, provisional allotment letter dated 14.05.2014 (Annexure C-2) was issued to the complainant. Even the  complainant earlier opted Construction Linked Payment Plan but thereafter the Opposite Parties on their own changed the plan to Interest Free Installment Plan, as is evident from Annexure C-3. Thereafter, Apartment Buyer’s Agreement was executed between the parties on 09.03.2016 (Annexure C-4) and as per Article 5.1 of the Agreement, possession was to be delivered within a period of 15 months from the date of execution of the Agreement i.e. latest by 08.06.2017 but the Opposite Parties failed to deliver possession of the same, rather changed his flat vide Agreement (Annexure C-5). The aforesaid act of the Opposite Parties amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on its part. Under these circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of unit in a developed project by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken 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 Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits.

14.              The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is not disputed fact that the complainant deposited the total amount of Rs.36,67,750/- with the Opposite Parties in respect of the unit, in question.  It is also the admitted fact that the Opposite Party failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated time frame as mentioned in the Agreement. So, the complainant is thus, entitled to get refund of amount of Rs.36,67,750/-. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

15.              It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is clearly proved that an amount of Rs.36,67,750/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the complainant is held entitled to get refund of the amount deposited by him, to the tune of Rs.36,67,750/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization. 

16.              No other point, was urged, by the Counsel for the parties.

17.              For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly & severally are directed, as under:-

1. To refund the amount Rs.36,67,750/-, to  the  complainant, alongwith interest @12% p.a.,  from the respective date of deposit onwards.
2. To pay compensation alongwith litigation expenses, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant.
3. The payment of awarded amounts mentioned at sr.nos.(i) & (ii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.no.(ii), from the date of filing of this complaint, till realization.

                   However, it is made clear that, if the complainant availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).

 

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Consumer Complaint No.246 of 2019 titled as Purushotam Sood Vs. Vs. Emerging Valley Pvt. Ltd. & anr.

18.              The complainant allotted an independent floor in Tower No.5, Flat No.14 (First Floor) at “Premium Trinity Homes” at Emerging Valley, Landran Banur Road, SAS Nagar Mohali. The total cost of the said flat was Rs.19,25,000/-. The complainant paid the amount of Rs.15,58,000/- for the said unit and subsequently, possession was offered vide letter dated 17.02.2016 (Annexure C-2) but the said flat was not ready in any manner. Therefore, the Opposite Parties offered alternate 2BHK flat bearing No.AH-2 (second floor) at Abhay Homes, Sector 127, District SAS Nagar, Mohali, which was situated in sister concern of Opposite Party No.1. i.e. Emerging India Housing Corporation Pvt. Ltd. and in this regard, a communication dated 30.08.2018 was also sent, to the effect that alternate flat costing of Rs.25,25,000/- was allotted to the complainant and against the alternate flat, the complainant deposited the total amount of Rs.19,25,000/-. Possession of the alternate flat was to be delivered by the Opposite Parties on or before 31.12.2018 but despite repeated requests, the Opposite Parties failed to deliver the same, which amounted to deficiency in service and indulgence into unfair trade practice.

19.            The Opposite Parties while filing reply raised almost the same allegations, as  levelled in CC/227/2019, except one allegation regarding denial of letter dated 30.08.2018 issued by the Opposite Parties. It is the admitted fact that initially flat was allotted by Opposite Party No.1 i.e. M/s Emerging Valley Pvt. Ltd. for total cost of Rs.19,25,000/-, out of which, the complainant paid the total amount of Rs.15,58,000/- till 01.02.2016. As per offer of possession, possession of the said flat was to be delivered before 30.04.2016 but the said flat was not ready till 30.04.2016. Thereafter, Opposite Party No.1 convinced and allured the complainant that the alternate flat is also in the project of the sister concern Company of Opposite Party No.1. i.e. Opposite Party No.2 i.e. M/s Emerging India Housing Corporation Pvt. Ltd. and the consideration as paid by the complainant for the said flat to Opposite Party No.1 will be credited ad adjusted by Opposite Party No.2 against the consideration of the alternate flat, for which, Opposite Party No.2 issued confirmation letter dated 30.08.2018 for the total cost of Rs.25,25,000/-, out of which, the complainant paid the amount of Rs.22,25,000/-. Perusal of Confirmation Letter dated 30.08.2018 (Annexure C-3) clearly shows that the same was issued on the letter head of Opposite Party No.2 i.e. Emerging India Housing Corporation Pvt. Ltd. and not only this, authorized signatory of the said Company signed the said letter. Therefore, the objection raised regarding non issuance of letter dated 30.08.2018 stands rejected.  

20.              For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly & severally are directed, as under:-

1. To refund the amount Rs.22,25,000/-, to  the  complainant, alongwith interest @12% p.a.,  from the date of deposit onwards.
2. To pay compensation alongwith litigation expenses, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant.
3. The payment of awarded amounts mentioned at sr.nos.(i) & (ii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.no.(ii), from the date of filing of this complaint, till realization.

 

21.              However, it is made clear that, if the complainant availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).

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Consumer Complaint No.70 of 2020 titled as Aditya Sunkaria & anr. Vs. Emerging Valley Pvt. Ltd.

 

22.              The complainants jointly applied for a residential independent floor in the project “Trinity Homes” on 02.07.2013, in which house No.TRI-380, FF in the said project was allotted but the Opposite Parties failed to deliver possession of the same, as such, re-allotted an independent floor No.1018 to the complainants at similarly situated project namely Prabh Homez located at Emerging Valley Pvt. Ltd., which was accepted under duress and provisional allotment letter dated 13.10.2014 was issued and promised to deliver possession of the same within 36 months from the date of execution of provisional allotment but it did not do so. Thereafter, the Opposite Parties again re-allottee flat No.H-402 located at Emerging Heights III, Sector 115, Mohali having total area of 1285 sq. ft. and the net sale price alongwith certain other charges was Rs.33,41,700/-, out of which, the complainants deposited a sum of Rs.25,97,750/- vide receipts (Annexure C-3 colly.). However, the Opposite Parties did not execute any Buyer Agreement. After receipt of the huge amount, the Opposite Parties failed to deliver possession of the unit, in question, which amounted to deficiency in service and indulgence into unfair trade practice.

23.            The Opposite Parties while filing reply raised almost the same allegations, as  levelled in CC/227/2019, therefore, there is no need to reiterate it again.

24.              For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly & severally are directed, as under:-

1. To refund the amount Rs.25,97,750/-, to  the  complainants, alongwith interest @12% p.a.,  from the date of deposit onwards.
2. To pay compensation alongwith litigation expenses, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
3. The payment of awarded amounts mentioned at sr.nos.(i) & (ii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.no.(ii), from the date of filing of this complaint, till realization.

25.              However, it is made clear that, if the complainant availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

26.              Certified Copies of this order be sent to the parties, free of charge.

27.              The file be consigned to Record Room, after completion.

Pronounced.

April 19^th, 2021.                                     Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

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