Chandigarh

StateCommission

CC/53/2022

Mr. Nirbhey Ram - Complainant(s)

Versus

Mr. Satish Gupta, Managing Director, M/s Gupta Builders and Promoters Pvt. Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma Adv.

01 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	53 of 2022
Date of Institution	:	24.06.2022
Date of Decision	:	01.09.2022

 

1. Mr.Nirbhey Ram S/o Mr.Kali Ram, Resident of House No.3223, Sector 21-D, Chandigarh-160022.
2. Mrs.Babita Verma W/o Mr.Akshey Kumar Verma, Resident of House No.2054, Near Ayyapa Temple, Sector 47-C, Chandigarh-160047

 ……Complainants

V e r s u s

1. Mr.Satish Gupta, Managing Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email id:gbp.derabassi@gmail.com
2. Sh. Anupam Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email id:gbp.derabassi@gmail.com
3. Sh. Raman Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email id:gbp.derabassi@gmail.com
4. Sh. Pardeep Gupta, Director/Promoter/Developer, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email id:gbp.derabassi@gmail.com

 

 .... Opposite Parties

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER

 

 Present: -   Sh.Rajesh Verma, Advocate for the complainants.

Opposite parties exparte vide order dated 25.07.2022.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This complaint has been filed by the complainants, seeking refund of the amount paid by them to the opposite parties, towards plots bearing no.98 and 226, purchased by them in their project named - “AEROSI”, Banur Landran Road, Near IT City, Sahibzada Ajit Singh Nagar, Punjab-140306. Agreements to sell dated 23.07.2019, Annexure C-2 and C-3 were also executed  between the parties, in respect of the plots in question. It is the case of the complainants that despite the fact that substantial amounts of Rs.17,35,763/- and Rs.30,64,242/-, stood received by the opposite parties, against the respective plots, neither allotment letters were issued in respect of the said plots nor sale deeds have been executed. It has been pleaded that now it has come to the knowledge of the complainants that the project in question has been abandoned; that the Directors of the Company are absconding and left the country; and that many criminal cases have been registered against them. It has been stated that despite the fact that buyback option was provided to the complainants at an agreed price of Rs.31,38,012/- and 48,02,972/-  respectively, i.e. totaling Rs.79,40,984/-, vide buyback agreements, forming part of the agreements tosell, referred to above, against which security cheques were given by them, but the same have been dishonoured by the bank(s) concerned. It has been averred that since the opposite parties have abandoned the project and there is no possibility of delivery of possession of the respective plots in the near future, as such, the amounts paid by the complainants against their respective plots including the amount agreed to be paid under the buyback agreements i.e. Rs.31,38,012/- and 48,02,972/-  respectively- totaling Rs.79,40,984/-,be refunded alongwithinterest, compensation and litigation expenses. Hence this complaint.

2.           Despite deemed service, through email dated 14.07.2022, none put in appearance on behalf of the opposite parties, as a result whereof, they were proceeded against exparte.
3.           The complainants led evidence, in support of their case and also filed written arguments.
4.           We have heard the Counsel for the complainants and have gone through the evidence and record of this case, including the written arguments filed by the complainants, very carefully.
5.           Counsel for the complainants vehemently contended that  neither  allotment letters, in respect of the plots in question were issued by the opposite parties nor possession thereof was delivered even within a reasonable period of 24 months from the date of execution of agreements to sell dated 23.07.2019, Annexure C-2 and C-3 respectively, nor sale deeds have been  executed by the opposite parties nor they honoured the buyback option, which was agreed to between the parties, by way of buyback agreements dated 23.07.2019, which were forming part of Annexures C-2 and C-3 respectively.  On the other hand, since the opposite parties have abandoned the project; the Directors of the company have left the Country; and there is no possibility of completion of the construction and development activities at the project site in the near future, as such, there is no choice left with the complainants, then to get their amount back. 
6.           It may be stated here that we have gone through the record of this case, and foundthat as per agreement to sell dated 23.07.2019, Annexure C-2 total price of plot no.98 was fixed at Rs.17,35,763/- out of which Rs.14,13,855/- stood paid by the complainants and an amount of Rs.3,21,908/- was pending to be paid at the time of offer of possession of the said plot. Similarly, it is evident from agreement to sell dated 23.07.2019, Annexure C-3 that total price of plot no.226  was fixed at Rs.30,64,242/-, out of which Rs.26,65,370/- stood paid by the complainants and an amount of Rs.3,98,872/- was pending to be paid at the time of offer of possession of the said plot. We have also referred to the terms and conditions of buyback agreements of the respective plots, which are forming part of the agreements to sell dated 23.07.2019 and found that the said buyback option was given to the complainants subject to the condition that the sale price due for the said plots till such time has been paid, till such time by the purchasers/ complainants to the opposite parties in terms of agreements to sell. In the instant case, there is nothing on record that the complainants defaulted any due payment, in respect of their plots in question.  On the other hand, Counsel for the complainants has specifically contended with vehemence that there was no default on the part of the complainants, while making payments, as demanded by the opposite parties, against the respective plots.  It is significant to mention here that the allegations leveled by the complainants, through their Counsel, to the effect that the project stood abandoned by the opposite parties; that the Directors of the company have left the Country; that construction and development activities have not been completed at the project site; and that there was  no default on the part of the complainants in making payments in respect of plots in question, have gone unrebutted, as the opposite parties, chose not to put in appearance, despite deemed service, as a result whereof they were proceeded against exparte.  
7.           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, in case, the development/construction activities are being undertaken at the project site and the project is not abandoned, 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 or not, but, as stated above, the opposite parties even failed to put in appearance despite deemed service, what to speak of contesting the allegations leveled by the complainants, by way of filing written reply and evidence. It is therefore held that in the absence of rebuttal to the allegations made by the complainants, in their complaint, the opposite parties have attracted an adverse inference, that they have nothing to say in their defence. 
8.           Hard earned money to the tune of Rs.17,35,763/- and Rs.30,64,242/- was paid by the complainants with a hope to have their plots. However, their hopes were dashed to the ground when they came to know that the project stood abandoned by the opposite parties and that their Directors have fled away, leaving the project midway.  From the peculiar circumstances of these cases, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in disadvantageous contracts with the developer 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 complainants to enter into the agreements, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, which has definitely caused a lot of mental agony, harassment and financial loss to the complainants.  
9.           The Hon’ble Apex Court in the case of Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. – (2018) 5 SCC 442 and the Hon’ble National Commission in the case of Parsvnath Exotica Resident Association Vs. Parsvnath Developers Ltd. & Ors., Devidayal Aluminium Industries (P) Ltd.  – IV (2016) CPJ 328 (NC), Subodh Pawar Vs. M/s Ireo Grace Realtech Pvt. Ltd. – CC No. 1998/16 decided on 24.09.18 and Amita Arora Vs. M/s. Ireo Grace Realtech Pvt. Ltd. – C.C.No.696/2017 decided on 27.03.2019, has held that the Courts are at liberty to grant the relief which is justified and warranted in the facts and circumstances of the case and a consumer/complainant cannot be asked to wait for indefinite period for the possession of the allotted plots/units. Thus, keeping in mind the peculiar facts and circumstances of the present case, we are of the considered opinion that if we order payment of Rs.31,38,012/- and 48,02,972/-  respectively-totaling Rs.79,40,984/- i.e. the amount agreed to be paid by the opposite parties, under the buyback option, keeping in mind that there is no possibility of delivery of the units in the near future, because of the reasons given above,  and the complainants were at liberty to avail the said buyback option under clause 2 of the respective buyback agreements, referred to above, that will meet the ends of justice. 
10.           For the reasons recorded above, this complaint is partly accepted with costs. The opposite parties, jointly and severally, are directed as under:-

1. Refund the amount of Rs.79,40,984/- (i.e. Rs.31,38,012/- plus Rs.48,02,972/- respectively), alongwith compensation by way of interest @9% p.a., without deducting any TDS, in equal/proportionate shares, to the complainants, from 23.10.2021 (27 months from the date of agreements dated 23.07.2019 as per clause 2 of buyback agreements), 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. 12% p.a. (9% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainants, in equal shares Rs.50,000/- each, 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.

11.           Certified Copies of this order be sent to the parties, free of charge.
12.           The file be consigned to Record Room, after completion

Pronounced.

01.09.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/- 

(RAJESH K. ARYA)

MEMBER

 

Rg.