Chandigarh

StateCommission

CC/228/2019

Madhu Jain - Complainant(s)

Versus

Emerging Valley Pvt. Ltd. - Opp.Party(s)

Sandeep Bhardwaj Adv.

20 Oct 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	228 of 2019
Date of Institution	:	09.10.2019
Date of Decision	:	20.10.2020

 

Madhu Jain w/o Sh.Sham Lal Jain.

Corresponding Address:- Sant Nagar, Street No.2, Near Church, Ferozepur, Punjab.

…..Complainant

Versus

1. Emerging Valley (P) Ltd., Corporate Office SCO No.46-47, Sector 9-D, First Floor, Madhya Marg, Matka Chownk, Chandigarh through its Director/Managing Director/Chairperson/ Authorized Representative.
2. Emerging Valley (P) Ltd., Regd. Office: B-57, Lower Ground, South Extension, Part-2, New Delhi-49 through its Director/Managing Director/Chairperson/ Authorized Representative.
3. Gurpreet Singh, Director/Managing Director/Authorized Representative of Emerging Valley (P) Ltd., Corporate Office:- SCO No.46-47, Sector-9D, Madhya Marg, Chandigarh.

…..Opposite Parties

BEFORE:          JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Present through Video Conferencing:-

 

                        Sh.Sandeep Bhardwaj, Advocate for the      complainant.

                        None for the opposite parties.

 

RAJESH K. ARYA, MEMBER   

                The complainant has filed this complaint seeking refund of the amount paid by her alongwith interest and compensation, as she is aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, because possession of the plot measuring 150 square yards, booked by her, in their (opposite parties) project named Emerging Valley, Kharar Landran Banur Road, Mohali, Punjab, for total sale consideration of Rs.29,60,000/-, was not offered to her, despite the fact that the entire sale consideration stood received by the Company. It is the definite case of the complainant that in the first instance, after an inordinate delay, vide letter dated 11.05.2016, Annexure C-16, the complainant was allotted plot no.46, measuring 200 square yards instead of 150 square yards and final allotment letter, Annexure C-24, was issued on 04.04.2019 depicting the price to be Rs.30,45,000/- including External Development Charges (EDC). However, it has been stated in the complaint that despite the fact that plot was booked in the year 2013, yet, possession thereof has not been offered till date for lack of construction and development activities. Number of requests made to the opposite parties in the matter did not yield any result.

2.         By stating that the aforesaid act and conduct of the opposite parties, amounted to deficiency in providing service, negligence and adoption of unfair trade practice, this complaint  has been filed by the complainant seeking refund of the amount paid alongwith interest, compensation and litigation expenses.  
3.         Notice of this complaint was sent to the opposite parties, in response whereof, Sh. J. S. Rattu, Advocate put in appearance and kept on seeking dates for filing reply and evidence. However, when the stipulated period of 45 days elapsed, but reply and evidence had not been filed on behalf of the opposite parties, their defence was struck off vide order dated 16.03.2020. Thereafter, on the day when the case was fixed for arguments on 06.10.2020, none put in appearance on behalf of the opposite parties. 
4.         This Commission has afforded adequate opportunities to the parties, to adduce evidence in support of their case, by way of filing affidavits. In pursuance thereof, the complainant has adduced evidence and also filed written arguments.  
5.         We have heard the counsel for the complainant, and have gone through the evidence and record of the case including the written arguments, very carefully.
6.         First coming to the jurisdiction of this Commission it may be stated here that from the perusal of documents placed on record by the complainant, we are convinced that this Commission is vested with pecuniary and territorial jurisdiction to entertain and decide this complaint.  Furthermore, there is also nothing on record wherefrom, it could be proved that the complainant is a speculator, as such, she falls within the definition of ‘consumer’, as defined under the Act.
7.         Now coming to the merits of the case, it may be stated here that perusal of record reveals that the complainant had booked a plot in the project of the opposite parties in October 2013 and thereafter she kept on making payments, yet, plot was not allotted in her favour. It was only vide letter dated 11.05.2016, Annexure C-16, i.e.  after a huge delay of more than 2 ½  years of booking that she was allotted plot no.46 measuring, 200 square yards, instead of 150 sqyare yards plot, and as per Clause ‘S’ thereof,  the opposite parties have committed to deliver possession of the said plot within a maximum period of 36 months from the date of receipt of 90% of amount of the total sale consideration. However, it is further evident from the record that the opposite parties issued final allotment letter dated 04.04.2019, Annexure C-24, qua Plot No.46 measuring 200 square yards. It has been vehemently contended by Counsel for the complainant that despite the fact that the complainant had booked plot aforesaid in 2013, yet, the opposite parties failed to develop the project, in question, and kept on receiving amount in respect of the same, whereas, as on today, she is empty handed, as there is no construction and development activities at the project site. The allegations leveled by the complainant have gone unrebutted, as the opposite parties chose not to file reply and evidence and also failed to put in appearance on the day, when arguments were heard. It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case also, in case, the development/ construction activities are being undertaken or complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/ construction activities, are being undertaken and almost complete at the site or not but, as stated above,  the opposite parties chose not to file reply and evidence and also failed to put in appearance on the day when arguments were heard, what to speak of contesting the allegations leveled by the complainant. As such, in the absence of rebuttal to the allegations made by the complainant, in her complaint, the opposite parties have attracted an adverse inference, that they have nothing to say in their defence and have accepted whatever has been stated by the complainant in her complaint. It may also be stated here that at the time of issuing notice in this complaint, this Commission vide order dated 11.10.2019 directed the opposite parties, to produce on record the following documents, duly authenticated, to apprise us, as to whether, the Company was competent to launch the project and sell plots therein to the general public including the complainants or not:-

1.  “Registration Certificate of the project with the competent authority.
2. Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
3. Change of Land Use (CLU) pertaining to the project in question.
4. Letter of Intent (LOI).
5. Copy of approved site plan of the project.
6. Completion Certificate of the project.
7. Latest photographs of the site/unit in dispute.
8. Current list of Managing Director/Director(s) of the Company.
9. Detail of Bank Accounts of the Company.
10. 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 to 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 in contravention of the 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 plots therein to the prospective buyers. It is well settled law that the project proponent is bound to obtain all necessary approvals/sanctions for launching the  said project and selling the plots therein to the prospective buyers but it is not so, in the present case. This act of the opposite parties amounts to deficiency in providing service and adoption of unfair trade practice.

8.         From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was enticed to rely upon it. The complainant is thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the transaction for purchase of the plot in question with an intent to deceive her, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.
9.         The plot in question was booked as far as back in the year 2013 and now it is October 2020 and still the complainant is empty handed. There has been an inordinate delay of more than 6 ½ years, in the matter. The complainant cannot be made to wait for an indefinite period.  It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date 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. Our view is 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 offering possession of the plot and the same is still continuing one, we are of the considered opinion that if we order refund of the amount paid by the complainant alongwith interest, that will meet the ends of justice. 
10.         Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amount paid. It may be stated here that a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder/company fails to deliver possession of units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In that case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The Hon’ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a.  

                Not only as above, even under Section 12 of the Punjab Apartment and Property Regulation Act, 1995 (PAPR Act), read with Rule 17 of the Rules thereunder,  it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a. It is therefore held that if interest @12% p.a. is awarded on the amount to be refunded to the complainant, that will meet the ends of justice.

11.         For the reasons recorded above, this complaint is partly accepted, with costs, and the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.30,45,000/- to the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for mental agony and harassment caused to the complainant and also litigation expenses, 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 shall carry interest @9% p.a. from the date of passing of this order, till realization.

  

12.         However, it is made clear that if the complainant has availed loan facility from any financial institution/bank, for making payment towards price of the plot in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her.
13.         Certified Copies of this order be sent to the parties, free of charge.
14.         The file be consigned to Record Room, after completion.

Pronounced

20.10.2020

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

 (RAJESH K. ARYA)

MEMBER