Chandigarh

DF-II

CC/221/2022

Ajaydeep Singh - Complainant(s)

Versus

M/s Emerging India Housing Corporation (P) Ltd. - Opp.Party(s)

Savinder Singh Gill

03 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	221 of 2022
Date  of  Institution	:	07.03.2022
Date   of   Decision	:	03.05.2024

 

 

 

 

 

Ajaydeep Singh s/o Sh.Gurpartap Singh, R/o House No.76, VPO Adhnian, Tehsil Malout, District Muktsar, Punjab 152114

             …..Complainant

Versus

1]  M/s Emerging India Housing Corporation (P) Ltd., having its site office at Emerging Heights, Sector 115, S.A.S.Nagar, Mohali, Punjab through its Directors Sh.Gurpreet Singh Sidhu, Sh.Sushil Kumar and Additional Director Sh.Kamaljit Singh

2]  Sh.Gurpreet Singh Sidhu, Director of M/s Emerging India Housing Corporation (P) Ltd., Presently lodged in Model Jail Chandigarh, Sarovar Path, Sector 51, Burail, Chandigarh 160051 through Superintendent Jail, Chandigarh

3]  Sh.Sushil Kumar, Director of M/s Emerging India Housing Corporation (P) Ltd., having its site office at Emerging Heights, Sector 115, Mohali

4]  Sh.Kamaljit Singh, Additional Director of M/s Emerging India Housing Corporation (P) Ltd., having its site office at Emerging Heights, Sector 115, Mohali   

  ….. Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Argued by:-     Sh.Hoshiar Chand, Counsel for complainant

                None for OPs No.1 & 2

                OPs No.3 & 4 exparte.

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

1]       By dint of this common order, we propose to dispose of 04 connected consumer complaints in which common questions of law and fact are involved, the details of which along with amount involved therein, is as under:-

 

Sr. No.	Case No.	Complainant	Vs.	OP(s)	Amount Paid in Rs.
1.	221/2022	Ajaydeep Singh	vs.	M/s Emerging India Housing corporation (P) Ltd. & Ors.	23,96,000/-
2.	493/2021	Amarjit Singh	Vs.	M/s Emerging Valley Pvt. Ltd. & Ors.	14,34,500/-
3.	302/2022	Kirandeep Kaur	Vs.	Emerging Valley (P) Ltd. & Ors.	6,40,000/-
4.	301/2022	Kuldeep Singh	Vs.	Emerging Valley (P) Ltd. & Ors.	33,00,000/-

2]       The facts are gathered from C.C.No.221/2022- Ajaydeep Singh Vs. M/s Emerging India Housing Corporation (P) Ltd. & Ors.

 

3]       The complainant has filed the present complaint pleading that on 25.7.2011 he booked a Flat No.B-303 in the project of OPs namely ‘Emerging Heights-III, situated at Sector 115, SAS Nagar Mohali by making payment of Rs.1,00,000/- against its total cost of Rs.40,32,000/- vide booking confirmation letter dated 25.7.2011.  It is stated that thereafter the complainant made different payments to the complainant and in total paid Rs.23,96,000/- including booking amount to the OPs by 27.12.2012 which has also been confirmed by the OPs vide Ann.C-2 (colly.) and Ann.C-3. However, the OPs neither issued allotment letter nor executed Buyer’s Agreement nor deliver the possession of said flat within the promised period of two years or upto three years in case of reasonable extension since the year 2011 despite receipt of substantial amount.  It is also stated that the complainant kept on visiting the OPs to know the status of the development of the project whereupon the OPs expressed their inability to deliver the possession of the said flat in near future. It is pleaded that the OPs do not have the requisite sanctions, approvals, permissions etc. from the concerned authorities for the said project at the time of taking booking from the complainant nor till date. Therefore, the present complaint has been preferred seeking refund of the entire amount, compensation and litigation cost etc.

 

4]       After the service of notice, the OPs No.1 & 2 appeared, filed their written version and took preliminary objections of maintainability, cause of action and also that the complainant is not consumer and he is required to approach the arbitrator as per the arbitration agreement.  It is stated that the flat was ready for possession but the complainant has not opted for the possession.  It is also stated that the possession was offered to the complainant after making the balance payment of the net sale price as he had not paid further amount after 2.5.2012. Denying all other allegations made in the complainant a prayer for the dismissal of the complaint has been made by the OPs.

 

5]       The OPs No.3 & 4 did not turn up despite service of notice, hencethey were proceeded against exparte vide order dated 23.09.2022.

 

6]       Replication has also been filed by the complainant controverting the assertions of OPs No.1 & 2 made in their written version.

 

7]       Parties led evidence in support of their contentions.

8]       We have heard the ld.Counsel for the complainant and have gone through the documents on record including written submissions.

9]       From the record & pleadings, it is observed that the complainant has admittedly booked a residential Flat No.B-303 in the subject project of the OPs.  It is clear from Ann.C-3 that an amount of Rs.23,96,000/- had already been paid by the complainant to the OPs. However, the OP neither issued allotment letter nor executed Buyer’ Agreement with the complainant despite receipt of substantial amount nor offered the possession of the Unit. More so, the OPs have failed to justify as to how they collected the money from the complainant and booked the Unit in question the year 2011-12 though they were not having necessary approvals to do so from the authorities concern nor delivered the possession of the said Unit to the complainant till date despite receipt of substantial amount even after a period of more than 12 years had already lapsed till date since the date of booking i.e. 2012. 

10]      It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed:

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

          Hence, the act of the Opposite Party to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

11]      In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

 

12]      Under above mentioned facts, the complainant is not obliged to accept any other offer of OPs when they failed to honour the commitment/promise made with complainant. Therefore, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainant but also caused him immense harassment & mental agony.

13]      Similar facts have been pleaded in other connected complaints and similar evidence has been led in them. Therefore, in all the cases, deficiency in service as well as unfair trade practice on the part of the OP(s) is proved.

14]      Resultantly, all the consumer complaints are partly allowed.

    In the present C.C.No.221/2021-Ajaydeep Singh vs.M/s Emerging India Housing corporatin (P) Ltd., the OPs is directed to refund the deposited amounts i.e. Rs.23,96,000/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. 

In C.C.No.493/2021-Amarjit Singh vs. M/s Emerging Valley Pvt. Ltd., the OP No.1 is directed to refund the deposited amounts i.e. Rs.14,34,500/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. The complaint qua OPs No.2 to 4 stands dismissed. 

In C.C.No.302/2022 – Kirandeep Kaaur Malhi Vs. M/s Emerging Valley (P) Ltd. and Others, the OPs are directed to refund the deposited amounts i.e. Rs.6,40,000/- to the complainant alongwith interest @10% per annum from the date of its respective deposits till the date of its actual realization.

    In C.C.No.301/2022 – Kuldeep Singh Vs. M/s Emerging Valley Pvt. Ltd. and Others, OPs are directed to refund the deposited amounts i.e. Rs.33 lacs to the complainants along with interest @ 10% per annum from the date of its respective deposits till the date of its actual realization.

        This order be complied with by the OP(s), within 90 days from the date of receipt of its certified copy.

15]      The pending application(s) if any, stands disposed of accordingly.

         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

03.05.2024                                                                      Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER