Punjab

Faridkot

CC/20/118

Neelam Rani - Complainant(s)

Versus

Emerging India - Opp.Party(s)

Arshdeep Kumar Sehgal

30 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT

 

Complaint No. :        118 of 2020

Date of Institution :   10.08.2020

Date of Decision :      30.03.2022

Neelam Rani aged about 60 years w/o Om Parkash r/o Ward No.20, Mukatsar Road, Khadian Wali Gali, Surgapuri, Kotkapura, Tehsil Kotkapura, District Faridkot.

...Complainant

Versus

1. Emerging India Housing Corporation (P) Ltd, SCO 46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director/ Responsible Person/ Authorised  Signatory/ Director.
2. M/s Emerging Valley Pvt Ltd. Registered Office : SCO 46-47, 1^st Floor, Sector 9-D, Madhya Marg, Chandigarh through its Managing Director/ Responsible Person/ Authorised  Signatory/ Director Gurpreet Singh Sidhu.

 

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3. Emerging India Infra and Developers Limited, Branch Office : Faridkot Road, Near Railway Track, Kotkapura, Tehsil Kotkapura, District Faridkot through its Managing Director/ Responsible Person/ Authorised  Signatory/ Director Gurpreet Singh Sidhu.

Also at Mr Gurpreet Singh Sidhu r/o Village Dhabbha Kukerian, Tehsil & District Abohar.

Also at Mr Gurpreet Singh Sidhu r/o # 317, Sector 21-C, Chandigarh.

Also at Abad City Centre, Sector-115, Kharar Landran Road, Besides of yes Bank, Mohali.

                                                          ........ OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

(Now, Section 35 of the Consumer Protection Act, 2019)

 

Quorum:     Smt Param Pal Kaur, Member.

                     Sh Vishav Kant Garg, Member.

 

Present:        Sh Gurnishant Singh, Ld Counsel for complainant,    

                    OPs Exparte.

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(ORDER) 

( Param Pal Kaur, Member)

                                              Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to them to flat or to refund the amount of Rs.15,00,000/-with interest besides Rs.2,00,000/- as compensation for harassment and mental agony alongwith litigation expenses of Rs.10,000/-.

2                                              Briefly stated the case of complainant is that OPs approached him for the sale of plots at various other places and stated that they have started various residential projects and also showed her layout plan of these projects. OPs assured complainant that residential projects would be developed within two years and all amenities would be provided in it and even also assured of good return on resale of same. On their assurance, complainant got ready to purchase the residential flat of 2BHK under their project Emerging Heights-3 located at Sector 115, Mohali. Flat no.F-304 was allotted to her as per layout plan presented before her. Though OPs delayed their

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project, but they issued letter dated 01.03.2018  regarding allotment of flat in question to her. It is alleged that complainant paid Rs.15 lacs to OPs and is still ready to pay the remaining amount, but as per their agreement, no development work started on site. Complainant approached Ops several times, but every time, OPs assured that development work would be completed soon as there is some problem in starting the work, but later on, they kept putting her off on one pretext or the other. Neither any construction work started there nor any basic amenities have been provided by OPs. Complainant approached OPs several times and made requests for giving possession of plot or to refund the amount, but they have refused to listen to her genuine requests and kept lingering on the matter on one pretext or the other, which amounts to deficiency in service. It has come to the knowledge of complainant that OPs are going to close the business without returning the amount to investors that amounts to trade mal practice on their part. Complainant has prayed for directing OPs to refund Rs.15,00,000/- with interest and has also prayed for

 

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compensation of Rs.2,00,000/- besides Rs.10,000/- as cost of litigation. Hence, the complaint.

3                                              The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 19.08.2020, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               As per office report, notice issued to Ops through registered cover received back with report ‘Addressee Left without Address’ by Postal Authorities. As complainant did not have any other address of OPs, therefore, he moved an application for effecting service to OPs through publication. His application was allowed and OPs were duly served through publication in vernacular newspapers, but despite repeated calls on date fixed, no body appeared in the Commission on behalf of OPs either in person or through counsel to defend the allegations levelled by complainant and therefore, vide order dated 08.11.2021, Ops were proceeded against exparte.

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5                                              Ld Counsel for complainant tendered in exparte evidence affidavit of complainant Ex C-1 and documents Ex C-2 to Ex C-4 and then, closed the evidence on behalf of complainant.

6                                     We have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.

7                                       The case of the complainant is that on assurance of OPs that residential projects would be developed within two years and all amenities would be provided in it and also on their assurance of good return on resale of same, complainant purchased residential flat of 2BHK under their project Emerging Heights-3 located at Sector 115, Mohali  and vide letter dated 01.03.2018, Flat No.-304 was allotted to her. She has alleged that she paid Rs.15 lacs to OPs and is still ready to  make payment of remaining amount but till now, OPs have not started any construction there and no development work is started. Grievance of the complainant is that despite several visits and repeated requests, OPs have done nothing useful. They have

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neither made any construction nor developed the basic amenities at the site and have also retained her huge amount, which amounts to deficiency in service. Prayer is made for directing Ops to refund the entire amount with interest.

 8                                In his support, ld counsel for complainant has produced copy of Allotment Letter as Ex C-2, from which it is clear that said flat was allotted to complainant by OPs on 01.03.2018. Document Ex C-4 placed on record by complainant i.e. copy of Payment Confirmation Certificate, is self explanatory as it itself speaks that payment of Rs.10 lacs has been received by OPs from complainant till 13.09.2019. Thus, there remains no doubt that amount of Rs. Ten lacs has been paid by complainant to OPs for purchase of said flat. However, receipt produced by complainant regarding deposit of Rs.5 lacs with them bears the date of issuance 28.02.2018.  Letter dated 01.03.2018 shows that flat in question was issued to complainant on 01.03.2018 and complainant made payment of Rs.5 lacs to OPs at the time of booking before entering into contract with them and certificate

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dated 13.09.2019 clearly reveals the point that till September, 2019 amount of Rs. Ten lacs was deposited by complainant with them and amount of  Rs.5 lacs as shown through receipt Ex C-3 at page no. 6 stands included in certificate dated 13.09.2019 Ex C-4,  wherein it is clearly mentioned that till 13.09.2019, total amount of Rs. Ten lacs was received from complainant by OPs against flat in question in Emerging Height III. Thus, there does not remain an iota of doubt that complainant paid Rs. Ten lacs to OPs till September, 2019 though actual cost of flat in question was Rs.31 lacs. However, complainant has failed to place on record any documentary evidence to prove that Rs.15 lacs have been paid by her to OPs for purchasing the flat in question. As per Ex C-3 copy of Allotment Letter dated 01.03.2018, shows that flat in question was issued to complainant in March, 2018, but till the filing of present complaint, no steps regarding development project in respect of construction work or basic amenities as promised by OPs, have been initiated by them. Grievance of the complainant is that despite repeated requests and personal visits paid by complainant to the office of OPs, they have done nothing needful to start

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construction work at the site. They have neither delivered the possession of flat in question nor have returned the huge amount received from complainant. All this act and conduct of OPs amounts  to deficiency in service and trade mal practice, that has caused huge harassment and mental agony to her.

9                                     As complainant has made last payment to OPs in September, 2019 and agreement of sale was executed on 01.03.2018 and as per terms of agreement development work was to be initiated within two years and possession was to be delivered within 36  months from the date of payment. Complainant has filed the present complaint within time frame and it is within limitation and thus, on the point of limitation, ld counsel for complainant has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections 2 (1) (g),  2 (1) (o) & 24 A – Housing Construction –Limitation – Delay in construction and possession by the builder – Plea of OP that since the

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last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24 – A – Held - it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer.

10                                                From the above discussion and case law produced by the ld counsel for complainant, we are fully convinced with the arguments advanced by ld counsel for complainant. OPs are exparte in present case and there is no rebuttal from OPs side. Complainant has succeeded in proving his case. The act of OPs for receiving the payment of flat and not giving the possession of same

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after development within time frame amounts to deficiency in service and trade mal practice on their part.     

11                                    From the careful perusal of the record and keeping in view the case law produced by complainant, Commission is fully convinced with the arguments advanced by ld counsel for complainant and is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not handing over the possession of flat to complainant. Moreover, act of OPs in retaining the huge amount of complainant without any reason is inappropriate and unjustified as they have deprived her of her original amount and interest accrued thereon.  Hence, the present complaint is hereby allowed.  OPs are directed to refund the amount of Rs.10,00,000/- (Ten Lacs) to  complainant with interest at the rate of 3% per anum from the date of depositing the same with OPs till final realization. Ops are further directed to pay Rs.3,000/-as compensation for harassment and mental agony suffered by her besides Rs.2,000/-as litigation expenses to complainant. OPs are directed to comply with the

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order within one month from the date of receipt of the copy of this order, failing which complainant shall be entitled to proceed under Section 71 and 72 of the Consumer Protection Act. Copies of order be supplied to the parties free of costs under the rules. File be consigned to record room.

Announced on

Dated : 30.03.2022

(Vishav Kant Garg)       (Param Pal Kaur)                        

Member                          Member

 

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Neelam Rani   Vs  Emerging India Housing Corp.

 

Present:        Sh Gurnishant Singh, Ld Counsel for complainant,    

                    OPs Exparte.

                     Arguments heard. Vide our separate detailed order of even date, complaint in hand is hereby allowed. Copies of order be supplied to the parties free of costs under the rules. File be consigned to record room.

Announced on

Dated :30.03.2022

(Vishav Kant Garg)       (Param Pal Kaur)                        

Member                          Member