Chandigarh

StateCommission

CC/82/2020

Rashmi Thakur - Complainant(s)

Versus

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

Devinder Kumar Adv.

29 Oct 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	82 of 2020
Date of Institution	:	16.03.2020
Date of Decision	:	29.10.2021

 

 

Rashmi Thakur wife of Sh. Satish Kumar Verma, Resident of House No. 145, Ward No.2, Hamirpur – 177001, Himachal Pradesh.

 

……Complainant

V e r s u s

1. Emerging Valley Private Limited, Corporate Office: SCO 46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh, through its Managing Director/ Auth. Signatory.
2. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Private Limited, Corporate Office: SCO 46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh. 
3. Harvinder Singh, Director, Emerging Valley Private Limited, Corporate Office: SCO 46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh.

                                                             .... Opposite Parties

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                MRS. PADMA PANDEY, MEMBER

                MR.RAJESH K. ARYA, MEMBER

                       

Argued by (through Video Conferencing):              

 

Sh. Devinder Kumar, Advocate for the Complainant.

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

Opposite Party No.3 ex-parte.

 

PER PADMA PANDEY, MEMBER

 

1.             The facts in brief are that the complainant booked a 2 BHK flat in the project of the Opposite Parties “Emerging Height 4” on 02.07.2014, in which flat No.E-103 was provisionally allotted to the complainant vide allotment letter dated 26.09.2013. The total price of the unit was fixed as Rs.28,80,000/-. However, the Opposite Parties could not complete the said project and thus issued another provisional allotment letter dated 26.02.2015 vide which the Complainant was allotted a residential floor 2 BHK ground floor, measuring super area 1100 sq. ft., in Project “PRABH HOMEZ” located at Emerging Valley Pvt. Ltd., Landran-Banur Road, Mohali. The net sale price of the flat was Rs.28,50,000/-, out of which, the complainant paid the amount of Rs.28,49,432/- vide receipts/statement of account (Annexure C-3, C-7 & C-8). It was stated that the Opposite Parties had also executed sale deed dated 08.03.2018 in favour of the Complainant and at the time of registration of sale deed it was assured that the possession of the flat would be delivered to the Complainant within six months, but they failed to deliver the same, despite repeated requests. The complainant visited the site/office a number of times and came to know that the Opposite Parties sold the flat to the Complainant along with other customers without getting necessary permissions from the competent authorities. Since the Opposite Parties failed to fulfill their commitments, the Complainant sought refund of the amount paid along with interest, but to no avail. It was further stated that the aforesaid acts, on the part of Opposite Parties, 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.

2.             Notice of the complaint was sent to Opposite Parties seeking their version of the case.  However, nobody appeared on behalf of Opposite Party No.3 despite service, therefore, it was proceeded ex-parte on 11.01.2021.

3.             The Opposite Parties No.1 & 2 contested the Complaint on the ground that in the face of existence of provision to settle disputes between the parties through Arbitration this Commission has no jurisdiction to entertain these consumer complaints; that the complaint is bad for mis-joinder/ non-joinder of necessary parties; that the complainant has concealed material facts from this Commission; that she did not fall within the definition of “consumer” as the unit in question was purchased for commercial purposes; that privity of contract if any, of the complainants was with the company and as such, Managing Directors/Directors were wrongly impleaded in their personal capacity. It was stated that the Complainant is not consumer as she never paid a single penny to the answering Opposite Parties nor the payment slips attached with the Complaint suggested that the amount paid by her nor she made the person who executed the registry in her favour the party in the present Complaint. 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.             Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the replication.

5.             This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments by the parties, wherein they have reiterated their contentions.

6.             Accordingly, we have heard counsel for the complainant and have gone through the entire record of the case, including the written arguments, very carefully.

7.             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.

8.             Now coming to the objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant, in the present Complaint, has purchased the unit in question, in the manner explained above, to indulge in ‘purchase and sale of units/plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainant is consumer as defined under the Act. Mere fact that the complainant is living in another house or that she has other properties in her name, is not a ground to shove her out of purview of consumer. Objection taken in this regard as such stands rejected.

9.             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.

10.           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 receipts/provisional allotment letters 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.

11.           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:-

 

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 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)

To

                        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

 

1.         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).
2.         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.
3.         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.
4.         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.
5.         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.
6.         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.
7.         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.
8.         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.
9.         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.
10.         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.
11.         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.
12.         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.
13.         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.

12.           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.28,49,432/- with the Opposite Parties in respect of the unit, in question.  It is also the admitted fact that the Opposite Parties failed to deliver the possession of the unit, complete in all respects, to the complainant within the stipulated time frame and only issued execute the sale deed just to save their skin. So, the complainant is thus, entitled to get refund of amount of Rs.28,49,432/-. 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. 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. 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, 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. 

13.           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.28,49,432/- 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.28,49,432/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization. 

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

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

1. To refund the amount Rs.28,49,432/- to  the  complainant, alongwith interest @12% p.a.,  from the date of deposit onwards.
2. To pay compensation, in the sum of Rs.1.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
4. 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.

16.           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 her (complainant).

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

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

Pronounced.

Oct. 29, 2021.                                        

Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 

“Dutt”