Chandigarh

DF-I

CC/54/2021

Manu Prehar - Complainant(s)

Versus

M/s Altus Space Builders Pvt. Ltd. - Opp.Party(s)

Arun Kumar Adv

01 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                            

Consumer Complaint No.	:	CC/54/2021
Date of Institution	:	25/01/2021
Date of Decision	:	01/09/2023

 

Manu Prehar son of Raj Prehar resident of house No.10, Sector 10, Chandigarh.

… Complainant

V E R S U S

1. M/s Altus Space Builders Pvt. Ltd., SCO 22, First Floor, Phase-10, Mohali through its Director/Managing Director/Authorised signatory.
2. Harpreet Singh, The Director, Altus Space Builders Pvt. Ltd., SCO 22, First Floor, Phase-10, Mohali.
3. Jaswinder Singh, The Director, Altus Space Builders Pvt. Ltd., SCO 22, First Floor, Phase-10, Mohali.
4. The Greater Punjab Officer’s Co-operative House Building Society c/o Altus Space Builder Private Limited, Sector 3C & 4C, Mullanpur, SAS Nagar, Mohali through its President/Authorised representative.
5. Ajeet Associates, SCO No.846, Sector 22-A, Opposite Parade Ground, Chandigarh through Jatinder Pal Singh, Chairman.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                               

ARGUED BY	:	Sh. Arun Kumar & Sh. Varun Bhardwaj, Advocates for complainant
	:	Sh. N.P. Chandel, Advocate for OPs 1 to 3
	:	OPs 4 & 5 ex-parte.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Manu Prehar, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that in the year 2011, OPs were planning to sell some developed plots in the area of villages Salamatpur, Dhodemajra & Sainimajra in Mullanpur.  OPs 2 & 3 are the Directors/Managing Directors of OP-1 and as such they are involved in day to day business of OP-1. OPs 1 and 3 to 5 had shown rosy picture to the complainant with regard to the plot for which the complainant had shown his willingness to own a residential plot measuring 500 sq.yards near Chandigarh for his and his family members’ personal use. Accordingly, an agreement to sell (Ex.C-1) was executed between complainant and OP-5. The complainant was asked to deposit an amount an amount of ₹68,00,000/-, which was deposited by him through cheque dated 5.5.2011 on account of full and final payment of subject plot to the tune of ₹64,50,000/- and as CLU and licence fee to the tune of ₹3,50,000/-, which were duly received by OPs 1 to 3 vide receipt (Ex.C-2).  It was agreed upon through the agreement to sell that the subject plot will be allotted to the complainant on 2^nd phase of CLU. After the execution of the said agreement dated 5.5.2011, complainant found that there was not even a single line in the said agreement to show within which period possession of the subject plot will be given to him. OPs remained silent for a period of 2½ years and afterwards the execution of the agreement to sell dated 5.5.2011 and thereafter on 26.9.2013 OPs 1 to 3 had written a letter to the complainant asking him about the preferential location of the subject plot to be informed to them on or before 15.10.2013. The complainant had sent the form duly filled by depositing the additional sum of ₹3,50,000/- as PLC charges which was duly received by the OPs and in this manner, OPs had received total sum of ₹71,50,000/- from the complainant.  Complainant waited for possession of his developed plot, but, nothing could be conveyed by the OPs, rather the complainant was shocked to receive a letter dated 12.2.2014 (Ex.C-6) issued by OPs 1 to 3 wherein they had mentioned that the lay out plans for Phase 2 of Muirwoods Eco-city, New Chandigarh had been submitted to the authorities for approval and the same are in the final stages of clearance despite of the fact that the OPs had received huge amount from the complainant in the year 2011 without even having approval from the competent authorities for launching the said project. The complainant received letter dated 3.8.2015 (Ex.C-7) alongwith blank pre-dated pre-printed buyer’s agreement dated 14.7.2015 (Ex.C-8), showing OPs 1 to 3 as seller of plot incorporating certain clauses showing that the possession will be delivered to the complainant within 30 months or within an extended period of six months from the date of execution of plot buyer’s agreement. Complainant refused to sign the said agreement as it was found that the project was not developed by the OPs for delivery of possession. Even after said agreement, when complainant again visited the site, it was found that there was no development and the aforesaid act of the OPs amounts to deficiency in service on their part.  Not only this, as OPs 1 to 3 & 5 had extracted huge amount from the complainant without having approvals from the competent authorities for launching the same, the said act amounts to unfair trade practice.  Not only this, even the complainant came to know that when the OPs had applied for letter of intent to the competent authority, the same was denied vide letter dated 25.2011 (Ex.C-10). Even till the year 2020, OPs could not develop the said project which fact is also clear from the photographs (Ex.C-13 colly.). OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs 1 to 3 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and also that the complainant is not a consumer.  It is further alleged that in fact the answering OPs had applied for Change of Land Use (CLU) with the competent authorities from time to time and after seeking approval from the competent authorities, they applied for approval of lay out plan which was duly approved by the competent authorities on 8.5.2014 and the copies of approvals for CLU and lay out plans are Ex.OP-1/1 to OP-1/6. As per the plot buyer’s agreement dated 14.7.2015, possession of the subject plot was agreed to be handed over to the complainant within 30 months or within an extended period of six months from the date of signing of the agreement by the complainant, subject to Force Majeure conditions.  It is further alleged that the possession of the subject plot became due on completion of the terms and conditions of the plot buyer’s agreement and now the project is at final stages and the complainant has to pay balance amount to the OPs.  The photographs showing the development at site are Ex.OP-1/7 (colly.). Due to pendency of the civil writ petition filed before the Hon'ble High Court by the OPs and their joint venture partner, possession could not be delivered to the complainant earlier and for that answering OPs cannot be held responsible.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Since OP-4 refused to accept notice of this Commission and none appeared on its behalf, therefore, vide order dated 9.3.2022, OP-4 was proceeded against ex-parte.
4. OP-5 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 9.3.2022.
5. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the contesting parties that the contesting OPs had agreed to sell the subject plot to the complainant for total sale consideration of ₹64,50,000/- and an amount of ₹3,50,000/- was paid by the complainant to the contesting OPs towards change of land use and licence fee, as is also evident from the receipt (Ex.C-2) and in addition to that he has also paid an amount of ₹3,50,000/- as PLC charges to them, as is also evident from the receipt  (Ex.C-5) and thereby had paid total amount of ₹71,50,000/- and further the possession of the subject plot has not been offered by the contesting OPs to the complainant, till date, the case is reduced to a narrow compass as it is to be determined if the complainant has paid the entire sale consideration to the contesting OPs and despite of having received the same from complainant, they have failed to deliver the possession within the stipulated period and the said act of the OPs amounts to deficiency in service and unfair trade practice and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being not maintainable, is liable to be dismissed, as is the defence of the OPs.
   2. As it is an admitted case of the contesting parties that the contesting OPs had received an amount of ₹68,00,000/- i.e. the total sale consideration of the subject plot alongwith the CLU and licence fee charges, which was also acknowledged by them vide receipt dated 6.5.2011 (Ex.C-2) and the OPs have come with the specific defence that they had applied for change of land use before the competent authorities and accordingly the approval was given by the competent authority, as is also evident from the approval letters dated 17.11.2011, 14.5.2012, 25.6.2013 and 10.9.2012 (Ex.OP-1/1 to OP-1/4), one thing is clear that the OPs were not having even the approval from the competent authorities for the change of land use for residential purposes at the time of receiving huge amount of ₹68,00,000/- from the complainant as full and final sale consideration as well as change of land use charges to the tune of ₹3,50,000/- i.e. on 6.5.2011, as is also evident from receipt (Ex.C-2). Even it is further clear from the approval of lay out plan letter dated 8.5.2014 that the contesting OPs had not obtained the requisite approvals from the competent authorities before accepting the sale consideration of the subject plot from the complainant in the month of May 2011 and started offering the sale of the subject plot to the complainant by executing the agreement to sell (Ex.C-1).  In this manner, the aforesaid act of the OPs is a clear violation of the provisions of Punjab Regional and Town Planning and Development Act, 1995 and Punjab New Capital (Periphery) Control Act, 1952, especially when the OPs were not having approvals from the competent authorities, as discussed above, before launching the project and offering sale of the subject plot to complainant and the said act of OPs amounts to deficiency in service and unfair trade practice.
   3. The complainant has also proved the photographs (Ex.C-13 colly.) which clearly indicate that even till 13.8.2019 as well as till 10.12.2020, i.e. just before filing of the present consumer complaint, the aforesaid land was not developed by the OPs as agreed upon through the agreement to sell.
   4. OPs have relied upon the plot buyer’s agreement (Ex.C-8) on the ground that the same was sent to the complainant with the request to sign the same and as through the said agreement OPs had agreed to complete the development of the said plot within 30 months or within an extended period of six months i.e. upto December 2018 and further due to Force Majeure, as alleged by the OPs in their written statement due to pendency of the writ petition, the possession could not be offered to the complainant and as on the spot possession is almost ready for delivery to the complainant, since the project has been developed as is also evident from the photographs (Ex.OP-1/7), there is no deficiency in service or unfair trade practice on the part of the contesting OPs and the consumer complaint of the complainant is not maintainable. However, the plea of the OPs is not tenable in the light of the fact that the OPs, even at the time of filing of the written statement, have not specifically stated that they have offered the possession to the complainant, rather they have stated that the land is almost near to the completion of development, further making clear that for the last more than 10 years, i.e. at the time of filing of the instant consumer complaint, OPs could not develop the project after seeking approval from the competent authorities before receiving huge amount from the complainant. 
   5. Moreover, the clauses referring about delivery of possession in plot buyer’s agreement (Ex.C-8) is of no help to the OPs, especially when the same neither bears the signature or seal of the contesting OPs nor of the complainant and also that all the columns of the same are unfilled.
   6. Not only this, OPs have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

7. It has thus been proved on record that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance 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 31.5.2018 and the relevant portion of the 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…………”

8. The complainant has also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view 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 Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
9. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

 

10. The consumer complaint is further resisted by the contesting OPs on the ground that the complainant was required to approach the arbitrator in case he was aggrieved against the OPs and the consumer complaint of the complainant is not maintainable before this Commission is also without merit as law on this point has already been settled by the Hon’ble Apex Court in the case of Aftab Singh Vs. Emmar MGF Land Limited & Anr., Consumer Case No.701 of 2015 decided on 13.7.2017 in which it was held that arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Fora notwithstanding the amendment made to Section 8 of Arbitration Act.
11. The consumer complaint is also resisted by the contesting OPs on the ground that the complainant is not a consumer as he has deposited the amount for investment purposes.  However, there is no iota of evidence led by the OPs in order to prove that the complainant has deposited the amount for investment purpose, rather the complainant has come with specific plea that he intended to purchase the subject plot for himself and his family members who wanted to settle near Chandigarh.
12. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed. 

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund the amount of ₹71,50,000/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment till realisation of the same.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject plot shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/09/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member