Chandigarh

StateCommission

CC/181/2019

Shamsher Singh Dinarpur - Complainant(s)

Versus

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

Naveen Sheokand & Kriteka Sheokand Adv.

01 Jun 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(1)

Complaint case No.	:	181 of 2019
Date of Institution	:	26.08.2019
Date of Decision	:	01.06.2021

Shamsher Singh Dinarpur son of Niranjan Singh, resident of House No.95, Mansa Devi Complex, Sector 4, Panchkula.

……Complainant

V e r s u s

Emerging India Housing Corporation Pvt. Ltd., SCO 46-47, 1^st Floor, Sector 9-D, Chandigarh – UT, Pin – 160009 through its Manager/Authorised Signatory/Office – in – Charge/Director Sales & Marketing.
Gurpreet Singh Sidhu, Managing Director/Authorized Signatory, SCO 46-47, 1^st Floor, Sector 9-D, Chandigarh – UT, Pin – 160009.

.... Opposite Parties

Argued by (through Video Conferencing):

Sh. Naveen Sheokand, Advocate for the complainant.

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

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(2)

Complaint case No.	:	27 of 2020
Date of Institution	:	23.01.2020
Date of Decision	:	01.06.2021

1. Smt.Shimla Rani w/o Sh.Sandeep Kumar r/o H.No.138, Gaushala Road, opp. Bristal Steel, Fazilka 152123.

2. Sh.Sandeep Kumar S/o Wazir Chand, r/o H.No.138, Gaushala Road, opp. Bristal Steel, Fazilka 152123.

……Complainants

V e r s u s

Emerging India Housing Corporation Pvt. Ltd., through its Managing Director.
Mr.Gurpreet Singh Sidhu, Director, Emerging India Housing Corporation Pvt. Ltd.
Sushil Kumar, Director, Emerging India Housing Corporation Pvt. Ltd.

Address : SCO 46-47, First Floor, Sector 9-D, Chandigarh.

Email ID : info@emergingindia.in

.... Opposite Parties

Argued by (through Video Conferencing):

None for the complainants.

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

(3)

Complaint case No.	:	60 of 2020
Date of Institution	:	28.02.2020
Date of Decision	:	01.06.2021

Roshan Lal, Aged 82 years, S/o Sohan Lal R/o Village Ghandhi Ropa, PO Beri Razadian, Tehsil Sadar, Distt. Bilaspur, H.P. (through his Special Power of Attorney Col. Rajesh Chandel S/o Roshan Lal).

……Complainant

V e r s u s

Emerging Valley Pvt. Ltd., through its Managing Director, having Corporate Office at SCO 46-47, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh –160009.
Emerging Valley Pvt. Ltd., through its Manager, Premium Trinity Homes, Located at Emerging Valley, Landran – Banur Road, Mohali.

.... Opposite Parties

Argued by (through Video Conferencing):

Sh. Gurnoor S. Sandhu, Advocate for the complainant.

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

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(4)

Complaint case No.	:	107 of 2020
Date of Institution	:	15.06.2020
Date of Decision	:	01.06.2021

Simranjeet Singh S/o Sh. Shishan Singh r/o 1047, Sector 19, Part II, HUDA, Kaithal.

……Complainant

V e r s u s

Emerging India Housing Corporation (P) Ltd., a company incorporated under the companies Act 1956 having its corporate office at SCO 46-47, First Floor, Sector 9-D, Matka Chowk, Madhya Marg, Chandigarh, through its Managingr Director.
Gurpreet Singh Siddhu, Managing Director, Emerging India Housing Corporation (P) Ltd., a company incorporated under the companies Act 1956 having its corporate office at SCO 46-47, First Floor, Sector 9-D, Matka Chowk, Madhya Marg, Chandigarh.

IInd Address :- House No.317, Sector 21-A, Chandigarh.

.... Opposite Parties

Argued by (through Video Conferencing):

None for the complainant.

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

=====================================================

(5)

Complaint case No.	:	113 of 2020
Date of Institution	:	23.06.2020
Date of Decision	:	01.06.2021

Jiwan Lal Saini, aged 64 years, S/o Sh. Puran Chand r/o Sen Mohalla, Tehsil Sadar, District Mandi, Himachal Pradesh, PIN – 175001.

……Complainant

V e r s u s

Emerging India Housing Corporation (P) Ltd., through its Managing Director Sh.Gurpreet Singh Sidhu, Present Address : Adab City Centre, SCO No.3, Adjoining YES Bank, Opposite Subway and Cafe Coffee Day, Kharar, Landran Road, Sector 114, Mohali, Earlier Address SCO No.46-47, 1^st Floor, Sector 9-D, Chandigarh – 160009.

.... Opposite Party

Argued by (through Video Conferencing):

Sh.Rajesh Verma, Advocate for the complainant.

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

=====================================================

(POSSESSION CASES)

(6)

Complaint case No.	:	18 of 2020
Date of Institution	:	15.01.2020
Date of Decision	:	01.06.2021

Ranjeet Kaur wife of Kuldeep Singh, r/o 11-12, Ranjit Nagar, Bhadson Road, Patiala, District Patiala.

……Complainant

V e r s u s

Emerging India Housing Corporation Pvt. Ltd., SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh, through its Managing Director.
Gurpreet Singh, Managing Director, Emerging India Housing Corporation Pvt. Limited, SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh.

.... Opposite Parties

Argued by (through Video Conferencing):

Sh. Manav Parteek, Advocate for the complainant.

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

============================================================

(7)

Complaint case No.	:	58 of 2020
Date of Institution	:	27.02.2020
Date of Decision	:	01.06.2021

Jasveer Kaur wife of Daljit Singh resident of 837, Near Gurudwara Bhag Singh, Village Bhlaina, Tehsil Gidderbaha, District Sri Muktsar Sahib.

……Complainant

V e r s u s

Emerging India Housing Corporation Private Limited, SCO No.46-47, First Floor, Sector 9, Madhya Marg, Chandigarh through its Managing Director.

Second Address :

Emerging India Housing Corporation Private Limited, Sector 92-A, SAS Nagar (Mohali), Punjab – 140306, through its Managing Director.

.... Opposite Parties

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

MRS. PADMA PANDEY, MEMBER

MR.RAJESH K. ARYA, MEMBER

Argued by (through Video Conferencing):

None for the complainant.

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

PER PADMA PANDEY, MEMBER

By this order, we propose to dispose of the aforesaid seven consumer complaints bearing Nos.181/2019, 27/2020, 60/2020, 107/2020, 113/2020 (five refund cases) and 18/2020 & 58/2020 (two possession cases). 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.181 of 2019 titled as Shamsher Singh Dinarpur Vs. Emerging India Housing Corporation Pvt. Ltd.

2. The facts in brief are that the complainant booked a flat in the project of the Opposite Parties “Emerging Heights” on 03.04.2014, in which flat No.E-501 in EH-III was allotted to the complainant vide allotment letter dated 18.09.2014. The total price of the unit was fixed as Rs.30,60,000/-, out of which, the complainant paid the amount of Rs.6,15,000/- vide receipts (Annexure C-2). The Opposite Parties also issued Offer Letter dated 16.09.2014 to the complainant. It was stated that the Opposite Parties assured the complainant to deliver possession within 12 months but they failed to deliver the same, despite repeated requests. The complainant visited the site/office on 15.06.2016 & 21.06.2016 and came to know that the said flat alongwith other amenities/facilities, as promised, were not even ready for possession and current photographs of the said project is also annexed as Annexure C-5. Ultimately, the complainant sent legal notice dated 22.05.2018 through his Counsel but to no avail. Therefore, the complainant was left with no alternative but to seek refund of the deposited amount alongwith interest but to no avail. 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. The Opposite Parties in their evidence by way of affidavit of Sh.Satish Sharma, Authorised Signatory of the Company have 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 complaint 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 already having house at Panchkula. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint as the flat is situated in Kharar. It was further stated that Buyer’s Agreement was not executed as the complainant has not made the balance payment of the net sale price. It was further stated that the flat was ready for possession and the complainant was issued offer letter and was told to clear the payments as per the payment schedule but he never paid any amount after booking the flat and after clearing the balance amount as per schedule, which clearly shows that the said flat was only booked for monetary gain. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

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

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

6. 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.

7. 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 having own house at Panchkula and he purchased the said unit in the project of the Opposite Parties purely for investment purposes only. 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 para No.3 of the complaint that “the complainant for the purpose of his residence booked a flat in the Emerging Heights project on 03/04/2014 and paid Rs.2,50,000/- on 03.04.2014.” 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 the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.

8. 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 the Opposite Parties stands rejected.

9. 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-2 to C-4 (receipts/provisional allotment letter & Offer Letter etc.) were sent by the Opposite Parties from their Chandigarh Office, as the aforesaid documents bore the address as “SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh – 160009”. 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.

10. 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. The Opposite Parties in their written statement have submitted that flat was ready for possession as the complainant was issued Offer Letter dated 16.09.2014 (Annexure C-4) for the allotted flat and was told to clear the payments, as per the payment schedule but he never paid the balance amount. Admittedly, the complainant booked unit in the project of the Opposite Parties namely Emerging Heights III situated in Sector 115, Mohali and paid the total amount of Rs.6,15,000/-. It is also the admitted fact that provisional allotment letter 18.09.2014 (Annexure C-3) was issued, in which, flat No.E-501 was allotted. It is also the admitted fact that Offer Letter dated 16.09.2014 (Annexure C-4) was issued in favour of the complainant. The allegation of the complainant is that after receipt of the amount of Rs.6,15,000/-, the Opposite Parties assured to execute Buyer’s Agreement but no Agreement was executed between the parties. On the other hand, the Opposite Parties submitted that no balance amount was paid by the complainant, as such, no Agreement was executed. Perusal of Annexure-II Payment Schedule (at page No.31 of the file) shows that net sale price of the unit, in question, was Rs.30,60,000/- and at serial No.1, it has been specifically mentioned that the complainant has to give 1^st installment “At the time of Buyer Agreement” but in the present case, no Agreement was executed between the parties, therefore, no balance payment was made. If for the sake of arguments, we believe the version of the Opposite Parties that flat was ready for possession, the Opposite Parties have failed to place on record any document i.e. Completion/Occupation Certificate to prove the same and without placing on record completion/occupation certificate by the Opposite Parties, only offer letter issued to the complainant has no value at all. The complainant also annexed coloured photographs of the project, in question (Annexure C-5) to prove his case, which clearly shows that no basic amenities are there. Moreover, as per Clause N of the terms and conditions of the provisional allotment letter, possession was to be delivered by the maximum time limit of three years after allotment i.e. latest by 2017 and not more than that but in the present case, neither Agreement was executed nor delivered any possession within the stipulated time frame. It may be stated here that even not only in the present case but also in large number of cases, the Opposite Parties failed to deliver possession of the unit, in question. The aforesaid act of the Opposite Parties amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part. 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, that will serve the purpose.

11. 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.6,15,000/- with the Opposite Parties in respect of the unit, in question. It is also the admitted fact that the Opposite Parties neither executed any Buyer’s Agreement nor delivered possession of the unit, complete in all respects, to the complainant within the stipulated time frame as mentioned in the terms and conditions of the allotment letter and only issued Offer Letter just to save their skin. So, the complainant is thus, entitled to get refund of amount of Rs.6,15,000/-. 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.

12. 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.6,15,000/-, 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.6,15,000/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization.

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

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

To refund the amount Rs.6,15,000/-, to the complainant, alongwith interest @12% p.a., from the date of deposit onwards.
To pay compensation, in the sum of Rs.1.00 lacs, for causing mental agony and physical harassment, to the complainant.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

15. However, it is made clear that, if the complainant(s) 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.27 of 2020 titled as Shimla Rani & anr. Vs. Emerging India Housing Corporation Pvt. Ltd. & ors.

16. The complainants jointly booked 3 BHK flat in the project of the Opposite Parties, namely, “Emerging Heights III” located at Sector 115, Mohali and flat No.A-802 was allotted. The total sale consideration of the said flat was fixed at Rs.40,32,000/-, as per the payment confirmation letter dated 15.11.2019 (Annexure C-6), out of which, the complainants paid the amount of Rs.38,30,400/-. The Opposite Parties promised to deliver possession of the unit, in question, to the complainant within 36 months from the date of booking confirmation letter dated 10.08.2011 i.e. latest by 09.08.2014. The Opposite Parties were regularly paying assured return of Rs.38,304/- every month to the complainants as compensation till the possession of the flat, as such, they paid the total amount of Rs.12,25,728/- (assured return) for the period from November, 2011 till February, 2015 and the Opposite Parties stopped the payment of assured return after February, 2015 to the complainants and on the other hand, the Opposite Parties neither issued any allotment letter alongwith terms and conditions nor executed any Buyer’s Agreement and not delivered possession of the unit to the complainants, which amounted to deficiency in service and indulgence into unfair trade practice.

17. The Opposite Parties while filing reply raised almost the same objections, as levelled in CC/181/2019, therefore, there is no need to reiterate it again.

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

To refund the amount Rs.38,30,400/-, to the complainants, alongwith interest @12% p.a., from the date of deposit. However, the Opposite Parties are at liberty to deduct the amount already paid to the complainant(s) towards assured rental because the complainant(s) was eligible for the said amount only in case of possession and not in case of refund.
To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

19. However, it is made clear that, if the complainants 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).

Consumer Complaint No.60 of 2020 titled as Roshan Lal Vs. Emerging Valley Pvt. Ltd.

20. The complainant booked a residential flat bearing No.EVP/TRP/1050, 2BHK, First Floor in Premium Trinity Homes located at Emerging Valley Private Limited, Mohali which was allotted vide provisional allotment letter dated 06.09.2014 (Annexure C-2). The total sale consideration of the said flat was Rs.18,50,000/- plus other charges, out of which, the complainant paid an amount of Rs.3,45,000/-. It was stated that the complainant came to know from various other buyers, who had booked the flat in the present project that the said project is a farce. It was further stated that neither any CLU was issued nor any building plans were approved by the competent authority and even the Opposite Parties were not even competent to sell plots or flats and to receive the amount from the buyers. Therefore, the complainant also sent written representation on 28.08.2015 to the Opposite Parties raising the demand for refund of the amount but despite receipt of written numerous letters as well as legal notice, the Opposite Parties failed to refund the same, which amounted to deficiency in service and indulgence into unfair trade practice.

21. The Opposite Parties while filing reply raised almost the same allegations, as levelled in CC/181/2019 i.e. arbitration ; non-joinder of registered office of the Company ; complainant is not a consumer etc and stated that Buyer’s Agreement was not executed, as the complainant made only the payment of Rs.3,45,000/-. The Opposite Parties further stated that the flat is ready for possession but the complainant is not entitled for the same because he has not made the balance payment.

22. The only point for consideration before us is as to whether the allegations leveled by the complainant in this complaint to the effect that the project has been launched without necessary approvals and that the Opposite Parties are still not in a position to deliver possession of the same in question, this Commission while dealing with identical matters came to the conclusion that the Opposite Parties never obtained the requisite permissions from the concerned authorities and therefore, they were not competent to sell the units. Even there is nothing on record to show that the Opposite Parties completed the construction of the unit. This Commission already held in the case titled as Chandan Mehta Vs. Emerging Valley Pvt. Ltd., complaint case No.272 of 2019, decided on 31.03.2021, the relevant portion of the said judgment reads as under :-

“10. Now coming to the main dispute qua non delivery of possession of the plot to the complainant, it may be stated here that to convince ourselves, as to whether the allegations leveled by the complainant in this complaint to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are still not in a position to deliver possession of the plot in question, in the near future, this Commission, during pendency of this complaint, vide orders dated 25.11.2020 and 04.01.2021, directed the opposite parties to produce on record the documents-Annexure R-1 colly, reliance whereupon has been placed on them in their written reply, to say that they have obtained all the approvals in respect of the project in question. In the said orders, it was also made clear by this Commission that failure to provide the said documents, shall attract adverse inference against the opposite parties but even then they failed to place on record the said documents. Not only as above, even vide order dated 09.12.2019 also, this Commission, directed the opposite parties to produce on record the following documents, duly authenticated, to apprise as to whether, the Company was competent to launch the project and sell units/plots therein to the general public including the complainant or not:-

“Registration Certificate of the project with the competent authority.
Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
Change of Land Use (CLU) pertaining to the project in question.
Letter of Intent (LOI).
Copy of approved site plan of the project.
Completion Certificate of the project.
Latest photographs of the site/unit in dispute.
Current list of Managing Director/Director(s) of the Company.
Detail of Bank Accounts of the Company.
List of properties both moveable and immoveable of the company and its Managing Director/Director(s) which can be attached in execution of the decree. ”

However, it is significant to mention here that even thereafter also during pendency of this complaint, despite the fact that number of opportunities were available with the opposite parties to place on record the aforesaid documents, yet, they failed to furnish the same for the reasons best known to them. Under these circumstances, we are of the considered view that by not placing on record the aforesaid documents, the opposite parties have attracted an adverse inference that the project in question had been launched by them in contravention of the relevant Rules and Regulations and also Punjab Apartment and Property Regulation Act, 1995 i.e. they have failed to obtain necessary approvals/sanctions for launching the said project and selling the units therein to the prospective buyers.

It is significant to mention here that earlier also, a similar question as to whether, the opposite parties were competent to launch the project in question and also to sell the units/plots therein or not, in respect of the very same project, fell for determination before this Commission in Anjali Dogra Vs. Emerging Valley Private Limited and ors., CC No.80 of 2019, decided on 04.01.2021 and it revealed therein, from the information provided under RTI dated 19.12.2017, by Greater Mohali Area Development Authority (GMADA) that Emerging Valley Pvt. Ltd., had applied to get licence to develop a colony; Letter of Intent (LOI) was issued, but, since the company failed to fulfill the conditions contained in the said LOI, licence was not issued to it and that it was not allowed to sell plot or flat in the said project without obtaining the same (license). Relevant part of the said order is reproduced hereunder:-

“……..Now the moot question which falls for consideration is, as to whether, the opposite parties were competent to launch the project in question and also to sell the units/plots therein or not. In the instant cases, the complainants while placing reliance on RTI/document dated 19.12.2017, Annexure C-8 (in CC No.156 of 2019) and 20.06.2017, Annexure C-5 in (CC No.80 of 2019), supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority, wherein, it was intimated that the said Company (Emerging Valley Pvt. Ltd.), had applied to get licence to develop a colony; Letter of Intent (LOI) was issued, but, since the company failed to fulfill the conditions contained in the said LOI, licence was not issued to it and that it cannot sell plot or flat in the said project without obtaining the same (license). Translated copy of the said letters read as under:-

“GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA BHAWA, SECTOR 62, S.A.S. NAGAR

(Town Planning and Licensing Shakha)

Sh.Manvir Singh

Home No.447, Type-2,

Punjab Mandi Board Complex

Sector 66, S.A.S. Nagar

Letter No.STP/GMADA/A-2/2016/1866 dt. 20/06/2017

Subject: Sh.Manvir Singh (File No.10919) through RTI Act, 2005 for information (Diary No.465 dated 05.06.2017)

The information sought Regarding the above subject, it is stated that M/S Emerging Valley Private Limited applied for setting up a colony at Village Nogiari district SAS Nagar and for taking up the license in this office but the promoter of the colony could not fulfil the conditions of letter of intent, the licence was not issued to the promoter. The promoter of the colony cannot sell a plot, flat and boths without taking the license.

Sd/- Administrative Office Licensing

GMADA, S.A.S. Nagar

Endorsement No.GMADA STP/2016 dated

copy of the above is hereby sent to Administrative officer (Coordination) SAS Nagar with reference to his letter No.1222 dated 08/06/2017 for information.”

11. Not only as above, recently also when a similar controversy came up for adjudication in respect of the very same project in the case titled as Gurdev Kaur Thind Vs. Emerging Valley Pvt. Ltd. and ors., CC No. 15 of 2020 decided on 21.12.2020, to convince ourselves, as to whether the allegations of similar nature as have been leveled by the complainant in this complaint, to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are not in a position to deliver possession of the plot in question, in near future also, are correct or not, this Commission, during pendency of that complaint (Gurdev Kaur Thind, supra), ordered an enquiry to be conducted by the Deputy Commissioner, SAS Nagar, Mohali and also by Chief Administrator Mohali Area Development Authority (GMADA), as to whether Emerging Valley Private Limited was in fact the owner of plots sold in the project- Emerging Valley, Village Naugiari, Tehsil and District Mohali or not and this Commission was surprised when it received enquiry report dated 27.11.2020 from the Additional Chief Administrator, GMADA, wherein, it was in a very candid manner stated that under the garb of permission of Change of Land Use (CLU), the opposite parties constructed unauthorized colony (the project- Emerging Valley Private Limited) without obtaining licence in that regard, as a result whereof, FIR has also been registered against the Directors of the Company and also they have been directed to demolish the unauthorized construction in the said project but they failed to take any action in that regard. Other serious allegations alongwith documentary evidence were also leveled by the GMADA, in the said enquiry report. Relevant part of the case Gurdev Kaur Thind, supra, reads as under:-

“Now coming to the main dispute qua non delivery of actual physical possession of the plot to the complainant, it may be stated here that to convince ourselves, as to whether the allegations leveled by the complainant in this complaint to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are not in a position to deliver possession of the plot in question, in near future, this Commission, during pendency of this complaint, ordered an enquiry to be conducted by the Deputy Commissioner, SAS Nagar, Mohali and also by Chief Administrator Mohali Area Development Authority (GMADA), as to whether the opposite Parties i.e. Emerging Valley Private Limited were in fact the owner of plot No.55, Emerging Valley, Village Naugiari, Tehsil and District Mohali or not? However, this Commission was surprised, when enquiry report dated 27.11.2020 was received from the Additional Chief Administrator, GMADA, wherein, it was in a very candid manner stated that under the garb of permission of Change of Land Use (CLU), the opposite parties constructed unauthorized colony (the project in question) without obtaining licence in that regard, as a result whereof, FIR has also been registered against the Directors of the Company and also they have been directed to demolish the unauthorized construction in the said project but they failed to take any action in that regard. Other serious allegations alongwith documentary evidence (Annexure A-1 to A-13) has also been leveled by the GMADA, in the said enquiry report, relevant contents whereof are reproduced hereunder:-

“…Enquiry Report

That in this regard, it is humbly submitted that the facts of the case are that on 05.07.2012 field staff of office of GMADA reported the matter that an unauthorised colony namely 'Emerging Valley' is being developed, on Landran-Banur scheduled road. On the basis of this field staff report, vide letter no. 1425 dated 17.07.2012 (Annexure A-I), a complaint was made to the SSP, SAS Nagar for registration of FIR for violation of the provisions of the Punjab Apartment and Property Regulation Act, 1995(hereinafter PAPRA, 1995).
That thereafter, vide letter no. 2728 dated 02.11.2012, the Assistant Public Relation Officer, GMADA, Ajitgarh (SAS Nagar) was directed by Estate Officer, GMADA to give the public notice in English and Punjabi newspapers about the development of unauthorised colonies/ Projects falling within the jurisdiction of GMADA and consequently public notices were given in various newspapers making the general public aware that 'M/s Emerging India Housing Corporation Private Ltd' has not been issued any License for the development as an approved colony by GMADA, as such no plot/ apartment can be offered for sale by the said company. Copy of letter dated 02.11.2012 and clips of newspapers have been annexed herewith as (Annexure A-2) colly.
That thereafter, M/s Emerging Valley Pvt. Ltd, after depositing tentative charges Rs. 1,45,66000( One Crore, Forty Five Lakh and Sixty Six Thousands only), obtained the permission for Change of Land Use (CLU) vide letter no. 1983 dated 04.07.2013 (Annexure A-3) Colly. This CLU was valid for two years from the date of grant of permission. As per the conditions v,vi and vii of CLU, the promoter company was bound to get License under PAPRA, 1995 before making any development/construction at the site.
That, but under the garb of permission for Change of Land Use the Promoter Company constructed the unauthorised colony without getting license from the Competent Authority.
That thereafter, when the Promoter company did not stop unauthorised construction and the Police Department did not take any action on the earlier complaint dated 17.07.2012, another” complaint, vide letter no. 1115 dated 23.04.2014 (Annexure A-4), was made to SSP, SAS Nagar to register FIR under PAPRA,1995 against the Promoter Company.
That thereafter, in reference to Promoter Company's application for issue of License of Colony, dated 28.01.2013 ,over 25 acres of land for which the Promoter Company had already obtained permission for change of land use, the Competent Authority-cum-Chief Administrator issued Letter of Intent (LOI) to the Promoter Company vide memo no. 1303 dated 06.05.2015 (Annexure A-5). This LOI was issued subject to certain conditions mentioned therein and these conditions were to be fulfilled within thirty days from the date of issue of the notice. However the Promoter Company failed to fulfill the conditions laid down in LOI, consequently LOI was cancelled vide letter no. 2465 dated 11.08.2015 and License of Colony could not be issued.
That thereafter, when even without getting the License of Colony, the Promoter Company started the development of unauthorised colony, a show cause notice, regarding demolition of unauthorised construction, was issued vide letter no. 4801 dated 01.12.2015, directing thereby to stop the unauthorised construction immediately and to come present, within thirty days, before the Competent Authority and show cause why the unauthorised construction made by the Promoter Company should not be demolished. This show cause notice was issued for violating the provisions of the Punjab Apartment and Property Regulation Act, 1995, the Punjab Regional and Town Planning and Development Act, 1995 and the Punjab New Capital(Periphery) Control Act, 1952. Copy of Show cause notice dated 01.12.2015 has been annexed herewith as Annexure A-6.
That thereafter, Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 1424 dated 23.06.2016 (AnnexureA-7) intimated to Chief Administrator, GMADA that M/s Emerging Valley Pvt. Ltd has applied in the office of Punjab Bureau of Investment Promotion (PBIP) for getting License. Through this letter Senior Town Planner has sought some legal opinion on the question as to whether the unauthorised construction made by the applicant may be considered under the compounding policy or in the process of issuing of License. In response to this query, Legal Cell GMADA opined that as the applicant is willing to develop his project as per law and if the applicant fulfils all the prescribed legal formalities, he may be allowed to join the main stream by issuing the License. This opinion was duly intimated to Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 5530 dated 15.11.2016 (Annexure A-8), further through this letter it was also intimated that the applicant, by making application at the office of Punjab Bureau of Investment Promotion(PBIP), was just trying to buy time for making unauthorised construction because if he had bona fide intention for taking license he would have deposited all the due charges which were requisite under the conditions of LOI issued earlier on 06.05.2015.
That thereafter, when the Promoter Company did not stop the unauthorised construction, then Estate Officer, GMADA vide letter no. 5908 dated 30.11.2016 (Annexure A-9) directed the Subdivisional Engineer to immediately seal the project of the Promoter Company and further directed to ensure that in future, unless the Promoter Company gets the License, no construction takes place and if the Promoter company makes further construction without license and this matter is not reported to the office of GMADA, then Sub-divisional Engineer shall be held liable personally.
That thereafter, vide Notification no. 12/04/165-Hg2/891764/1 dated 15.12.2016, the Govt. of Punjab, Department of Housing and Urban Development, notified the regularization policy for the purpose of regularization of unauthorised colonies. The Promoter Company, for getting its unauthorised colony regularised, applied to the Senior Town Planner, Punjab Bureau of Investment Promotion (PBIP) on 16.12.2016 (Annexure A-10) for transferring its case to the office of GMADA. However, this policy was not applicable in this case because this colony falls within Periphery Controlled area.
That thereafter, in 2017, the people who had purchased plots/property, from the Promoter Company, filed complaints in consumer forums against the Promoter Company. Firstly, because of this litigation and investment made by the innocent people' and secondly it was seeming that the Promoter Company may get the due License of colony because it has been making representations in this regard in the office of GMADA (Annexure A-11) colly. Due to these reasons, at that time GMADA hold the process of demolition and only kept the project sealed for stopping further unauthorised construction at the site.
That thereafter, vide letter no. 5683 dated 22.08.2019 (Annexure A-12), Estate Officer GMADA wrote to the SSP, SAS Nagar to provide information about the registration of FIR against the Promoter Company. Finally, taking action on the earlier complaints and on this letter, FIR has been registered on 21.08.2019 at Police Station, Sohana, Distt. SAS Nagar, under section 36(1) of Punjab Apartment and Property Regulation Act, 1995, against Sh. Gurpreet Singh and Sh. Kamaljit Singh, Directors of the Promoter Company M/s Emerging Valley Pvt. Ltd. A copy of FIR has been annexed herewith as (Annexure A-13) co11y.
That thereafter, when the Promoter Company did not get the license of colony, the Competent Authority-cum- Additional Chief Administrator, GMADA vide order no. 1324 dated 17.07.2020 directed to Sh. Gurpreet Singh and Sh. Kamaljit Singh, the Directors of the Promoter Company to demolish the unauthorised construction within the period of thirty days from the date of issue of demolition orders. But the Directors of the Promoter Company did not take any action in compliance of demolition order. Thereafter, on 17.09.2020 and 18.09.2020 this unauthorised construction has been demolished by GMADA and in this regard in EA/446/2017 (Kuldeep Singh Negi Vs M/s Emerging Housing Corporation Pvt. Ltd.) due compliance report has been filed on 07.10.2020. Therefore, it is respectfully submitted that the office of GMADA, from the very initial stage of development of unauthorised colony, has been taking action, the Promoter Company has been making construction inspite of giving notices and sealing of project Though they had applied for CLU, LOI, regularization of colony under the Policy notified by the Govt. Of Punjab, but they were not able to get any approval from the Competent Authority. Therefore ' GMADA office has written to SSP, SAS Nagar vide letter 1425 dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019. There is no laxity in efforts from GMADA office against the Promoter Company.

Therefore, it is respectfully prayed that in view of the facts and circumstances narrated above this Compliance Report may_ kindly be allowed to be taken on-record and proceedings against GMADA may be dropped, in the interest of justice.

Place: S.A.S Nagar Addition Chief Administrator GMADA

Dated:27.11.2020”

It is settled law that before launching the project and selling the units therein, the project proponent is legally bound to obtain all necessary approvals/permissions/clearances from the Competent Authorities. Whereas, in the present case, as is evident from the afore-extracted information culled out from the enquiry report submitted by the GMADA, it has been proved that the project launched by the opposite parties was farce. Not even licence for launching the project in question has been obtained by the opposite parties, what to speak of obtaining remaining approvals/permissions/clearances from the Competent Authorities. The office of GMADA, from the very initial stage of development of unauthorized project in question, initiated various legal actions with a view to stop the construction and development there but the company did not stop in doing so. Though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard. Written complaints by the GMADA office were also given to SSP, SAS Nagar vide letter 1425 dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions 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 May 2018. Relevant part of the said 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…………”

In this view of the matter, plea taken by Counsel for the opposite parties that the company was in legal position to deliver possession in June 2017 or that the complainant failed to take over possession of the plot in question, being devoid merit stands rejected……”

12. The present complaint also relates to the very same project i.e. Emerging Valley Private Limited, Kharar Landran Road, wherein the complainant has purchased the plot in question. As such, the allegations leveled by him to the effect that the project had been launched in complete violation of relevant Rules and Regulations and that now the same stood abandoned and it is not feasible to get legal possession of the plot in question, in near future also, is fortified from the information provided in the Enquiry Report referred to above having been issued by the GMADA and discussed in Gurdev Kaur case (supra) to the effect that from the very initial stage of development of unauthorized project in question, initiated various legal actions with a view to stop the construction and development there but the company did not stop in doing so; that though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard; that written complaints by the GMADA office were also given to SSP, SAS Nagar vide letter 1425 dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant.”

Even the complainant in his written arguments has stated that the project of the Opposite Parties was a total farce as not even a single brick was placed by them on the said project site. Therefore, the complainant is certainly entitled for refund of the amount alongwith compensation etc.

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

To refund the amount Rs.3,45,000/-, to the complainant, alongwith interest @12% p.a., from the date of deposit onwards.
To pay compensation, in the sum of Rs.75,000/- (as prayed), for causing mental agony and physical harassment, to the complainant.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

24. 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).

Consumer Complaint No.107 of 2020 titled as Simranjeet Singh Vs. Emerging India Housing Corporation Pvt. Ltd. & Anr.

25. The complainant booked 2 BHK flat in the project of the Opposite Parties, namely, “Emerging Heights III” located at Sector 115, Mohali and flat was allotted vide offer of provisional allotment letter dated 06.05.2013 (Annexure C-1). The net sale consideration of the said flat was fixed at Rs.34,50,000/- and the complainant paid the full amount of Rs.34,50,000/- vide acknowledgment letter dated 13.08.2015 (Annexure C-5). Apartment Allottee(s) Arrangement was executed between the parties on 31.07.2015 (Annexure C-4). As per Clause 5, possession was to be delivered to the complainant by 31.03.2016, failing which, the Opposite Parties are bound to give rental income of Rs.10,000/- per month but despite receipt of the total amount of Rs.34,50,000/-, the Opposite Parties neither delivered possession of the unit, in question, complete in all respects to the complainant within the stipulated time frame as mentioned in the Agreement nor refund the amount, despite repeated requests, which amounted to deficiency in service and indulgence into unfair trade practice.

26. The Opposite Parties while filing reply raised almost the same allegations, as levelled in CC/181/2019, therefore, there is no need to reiterate it again.

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

To refund the amount Rs.34,50,000/-, to the complainant, alongwith interest @12% p.a., from the date of deposit onwards.
To pay compensation, in the sum of Rs.1.00 lacs, for causing mental agony and physical harassment, to the complainant.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

28. 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).

Consumer Complaint No.113 of 2020 titled as Jiwan Lal Saini Vs. Emerging India Housing Corporation Pvt. Ltd.

29. The complainant alongwith his brother initially booked four flats in Trinity Homes located at Kharar – Banur Road but the Opposite Party told that it was unable to complete the project due to non-availability of necessary approvals and asked him to shift his amount already paid in Emerging Heights III at Sector 115, Mohali. Thereafter, the Opposite Party vide letter dated 20.01.2016 (Exhibit C-1) shifted flats in Emerging Heights III, Sector 115, Mohali for 3 BHK Flat No.D-904. The Opposite Party adjusted the amount of Rs.24,83,845/- already paid to them on different dates towards the new flat. On oral request of the complainant for 2 BHK flat instead of 3 BHK flat, the Opposite Party shifted his flat to 2 BHK for total consideration of Rs.35,99,000 and the complainant paid the entire amount of Rs.36,32,165/- (as per chart given in page No.3 of the complaint). The complainant was allotted 2 BHK flat No.E-701 vide final allotment letter dated 14.03.2018 (Exhibit C-4). As per final allotment letter, possession was required to be given within four months from the date of registry. Thereafter, the Opposite Party even after executing the registered sale deed dated 26.03.2018 did not offer possession of the flat even after various requests. Even the Opposite Party vide letter dated 08.04.2019 assured the complainant to give possession on or before 30.07.2019. The complainant in the month of August, 2019 went to the office of the Opposite Party for enquiring about the possession of his flat but to utter surprise, the office of the Opposite Party was found closed and he came to know that the Opposite Party had not taken the requisite permissions from the concerned authorities for selling the flats and the Director of the Opposite Party is also absconding and has been declared proclaimed offender in various cases. Despite repeated requests and visits, the Opposite Party neither executed any Buyer’s Agreement nor delivered possession of the unit to the complainant complete in all respects, which amounted to deficiency in service and indulgence into unfair trade practice.

30. The Opposite Party while filing reply raised almost the same allegations, as levelled in CC/181/2019 i.e. arbitration ; non-joinder of registered office of the Company ; complainant is not a consumer & jurisdiction etc. So, there is no need to reiterate it again.

31. The only point to be discussed is as to whether the Opposite Party offered possession of the unit, in question, to the complainant complete in all respects or not. It is the admitted fact that initially the flat was in Trinity Homes and thereafter the same was transferred in Emerging Heights III and adjusted the amount. The allegation of the complainant is that the Opposite Party even after execution of the sale deed dated 26.03.2018 did not offer possession of the flat to the complainant, despite repeated requests. Perusal of final allotment letter dated 14.03.2018 shows that possession was required to be delivered within four months from the date of registry. The Opposite Party vide letter dated 08.04.2019 (Exhibit C-6) assured the complainant that possession will be delivered on or before 30^th July, 2019, failing which, rental income will be given. If for the sake of arguments, we believe that the Opposite Party handed over possession by execution of the sale deed dated 26.03.2018, then why the Opposite Party vide letter dated 08.04.2019 promised to deliver possession on or before 30^th July, 2019. Not only this, the Opposite Party had not even executed the Buyer’s Agreement with the complainant, which is mandatory to execute at the time of accepting money from the complainant. Moreover, the Opposite Party has failed to place on record any documents i.e. completion certificate, if any, to show that project was complete in all respects. Therefore, the complainant is certainly entitled for refund of the deposited amount alongwith compensation etc.

32. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

To refund the amount Rs.36,32,165/-, to the complainant, alongwith interest @12% p.a., from the date of deposit onwards.
To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

33. 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).

===================================================

POSSESSION CASES

Consumer Complaint No.18 of 2020 titled as Ranjeet Kaur Vs. Emerging India Housing Pvt. Ltd.

34. The complainant was allotted 2 BHK residential flat in Emerging Height-III situated at Sector 115, Mohali vide provisional allotment letter dated 19.05.2014 (Annexure C-1). The total consideration of the flat, in question, was Rs.32,40,000/-, out of which, the complainant paid an amount of Rs.25,15,000/- vide payment confirmation letter dated 07.12.2018 (Annexure C-5). As per the terms and conditions of the allotment letter, possession was to be delivered maximum limit of three years after allotment i.e. 18.05.2017. The complainant visited the office of the Opposite Parties to enter the Buyer’s Agreement, as most of the payment has been made but they did not enter into Agreement. Despite repeated requests & visits and receipt of legal notice dated 25.11.2019 (Annexure C-7), the Opposite Parties failed to deliver possession of the unit, in question, to the complainant, which amounted to deficiency in service and indulgence into unfair trade practice.

35. The Opposite Parties in their reply stated that the project is completing and the Company is putting its all the efforts to give the possession to those customers who have paid but in the present case, the complainant had not paid the balance amount after the payment made in the year 2018. It was further stated that the delay in handing over is due to the project attached in the few executions pending before this Commission. It was further stated that the project in which the complainant had invested is duly approved. It was further stated that as far as sanctions and approvals are concerned, the same are attached alongwith reply including sale deeds in order to establish on record the project in which the complainant had invested is duly approved. It was further stated that the Opposite Parties undertake to get the registry of the flat done on priority as and when the project is de-attach. It was further stated that no compensation/interest is to be paid to the complainant as the delay was not intentional but for the reasons mentioned above, there was no deficiency in service and indulgence into unfair trade practice.

36. Admittedly, the complainant booked unit in the project of the Opposite Parties for the total consideration of Rs.32,40,000/-, out of which, she paid an amount of Rs.25,15,000/-. After receipt of the huge amount, neither the Opposite Parties executed any Buyer’s Agreement nor delivered possession of the unit, in question, within the stipulated time frame as mentioned in the terms and conditions of the provisional allotment letter. Even when the complainant visited the site, she found that there was no development at the site and already more than 5 years have been passed but the Opposite Parties failed to deliver possession of the unit. The complainant even requested the Opposite Parties to provide him copy of site plan and building plan but they failed to provide the same. Since the complainant sought possession of the unit, in question, complete in all respects in this case and has already made substantial payment of amount and as such it is the duty of the Opposite Parties to give possession of the flat complete in all respects to her after obtaining Completion Certificate from the competent authority but in the present case, the Opposite Parties have failed to place on record any completion certificate to prove that the unit is ready for possession. Furthermore, the complainant is also entitled for compensation @12% p.a. on the deposited amount, as per terms and conditions of the allotment letter, for the period of delay i.e. starting from 18.05.2017 till completion certificate is obtained and possession is delivered.

37. For the reasons recorded above, this complaint is partly accepted with costs and the Opposite Parties, jointly and severally, are directed as under:-

To complete development/overall infrastructure works, wherein the flat in question is located, complete in all respects, and obtain completion certificate from the competent Authorities.
To pay compensation by way of simple interest @12% p.a., on the entire deposited amount, to the complainant, from 18.05.2017 to 31.05.2021, within one month, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @14% p.a. instead of 12% p.a., from the date of default, till realization.
To pay compensation by way of interest @12% p.a. on the entire deposited amount w.e.f. 01.06.2021, onwards (per month), till delivery of actual physical possession of the flat, in dispute, complete in all respects i.e. after obtaining completion certificate from the competent Authorities, by the 10^th of the following month, failing which, the same shall also carry penal interest @14% p.a., instead of 12% p.a., from the date of default, till payment is made, which shall continue till actual physical possession of the unit in question is delivered to the complainant, in the manner ordered above.

However, it is made clear that the Opposite Parties shall be at liberty to deduct the amount of compensation already credited by them, if any. It is further made clear that the Opposite Parties shall not charge any delayed interest from the complainant for the payments demanded from them in the absence of development/infrastructure works or holding charges, as fault if any was on their part, for which they are not entitled to seek any benefit out of it.

To pay compensation for causing mental agony and harassment to the complainant and cost of litigation, in lumpsum, to the tune of Rs.50,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

Consumer Complaint No.58 of 2020 titled as Jasveer Kaur Vs. Emerging India Housing Corporation Pvt. Ltd.

38. The complainant applied for allotment of unit a 2 BHK residential flat and on 07.05.2016, the Opposite Party allotted 2 BHK residential flat bearing No.E-201 (Cat-B, Block-2, Tower-E, 2^nd Floor) measuring super area 1279 sq. ft. in “Emerging Heights 3 (EH3) situated at Sector 115, Kharar Landran Road, Mohali. The complainant took a loan from Indiabulls Housing Finance Ltd., for which, Tripartite Agreement was executed between the parties (Annexure C-2). Buyer’s Agreement was also executed between the parties and as per the Agreement, possession was to be delivered to the complainant within a period of three years from the date of allotment. Despite receipt of the huge amount i.e. more than Rs.21 lakhs from the complainant and repeated requests and visits, the Opposite Party failed to hand over possession of the unit, in question, to the complainant, which amounted to deficiency in service and indulgence into unfair trade practice.

39. The Opposite Party in its reply took similar objections regarding non-joinder of registered company as party as well as jurisdiction in CC/181/2019, so there is no need to reiterate it again. The Opposite Party further stated that the complainant had not paid the amount as per the payment schedule and stopped the payments and further offer was also given to the complainant, for which, there was no response from their side. It was further stated that the basic amenities also provided to the customers and flat is ready, as such, the complainant can take the possession. It was further stated that the project is completing and the company is putting its all the efforts to give the possession to those customers who have paid but in the present case the complainant had not taken the possession and it was the customer who is at fault that she had not paid the company after the last payment made in the year 2016. It was further stated that the delay in handing over is due to the project attached in the few executions pending before this Commission. Therefore, there was no deficiency in service and indulgence into unfair trade practice on the part of the Opposite Party.

40. Admittedly, the complainant booked unit in the project of the Opposite Party and paid more than Rs.21 lakhs. It is also the admitted fact that the complainant took loan and Tripartite Agreement was executed between the parties. After receipt of the huge amount, neither the Opposite Party executed any Buyer’s Agreement nor delivered possession of the unit, in question, as per the terms and conditions of the provisional allotment letter dated 07.05.2016 and when the complainant visited the site, she found that there was no development at the site and the Opposite Party failed to deliver possession of the unit. Since the complainant sought possession of the unit, in question, complete in all respects in this case and has already made substantial payment of amount and as such it is the duty of the Opposite Party to give possession of the flat complete in all respects to her after obtaining Completion Certificate from the competent authority but in the present case, the Opposite Party failed to place on record any completion certificate to prove that the project is complete and unit is ready for possession. Furthermore, the complainant is also entitled for compensation @12% p.a. on the deposited amount, as per terms and conditions of the allotment letter, for the period of delay i.e. starting from 06.05.2019 till completion certificate is obtained and possession is delivered.

41. For the reasons recorded above, this complaint is partly accepted with costs and the Opposite Party is directed as under:-

To complete development/overall infrastructure works, wherein the flat in question is located, complete in all respects, and obtain completion certificate from the competent Authorities.
To pay compensation by way of simple interest @12% p.a., on the entire deposited amount, to the complainant, from 06.05.2019 to 31.05.2021, within one month, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @14% p.a. instead of 12% p.a., from the date of default, till realization.
To pay compensation by way of interest @12% p.a. on the entire deposited amount w.e.f. 01.06.2021, onwards (per month), till delivery of actual physical possession of the flat, in dispute, complete in all respects i.e. after obtaining completion certificate from the competent Authorities, by the 10^th of the following month, failing which, the same shall also carry penal interest @14% p.a., instead of 12% p.a., from the date of default, till payment is made, which shall continue till actual physical possession of the unit in question is delivered to the complainant, in the manner ordered above.

However, it is made clear that the Opposite Party shall be at liberty to deduct the amount of compensation already credited by them, if any. It is further made clear that the Opposite Party shall not charge any delayed interest from the complainant for the payments demanded from them in the absence of development/infrastructure works or holding charges, as fault if any was on their part, for which they are not entitled to seek any benefit out of it.

To pay compensation for causing mental agony and harassment to the complainant and cost of litigation, in lumpsum, to the tune of Rs.50,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

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

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

Pronounced.

June 1^st, 2021. Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

Sd/-

(PADMA PANDEY)

MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

Chandigarh

StateCommission

CC/181/2019

Shamsher Singh Dinarpur - Complainant(s)

Versus

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

Naveen Sheokand & Kriteka Sheokand Adv.

01 Jun 2021

ORDER

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