Chandigarh

StateCommission

CC/259/2018

Dr. Asha Jamwal - Complainant(s)

Versus

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

Sachit Kaushal, Priyanka Puri, Adv.

10 Jun 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	259 of 2018
Date of Institution	:	08.06.2018
Date of Decision	:	10.06.2019

 

Dr.Asha Jamwal W/o Sh.Devinder Singh Jamwal (retd.), R/o House No.2032/A, Sector 47-C, Chandigarh (Presently residing at Address:- B.NQ. 480, Sector-C, Sainik Colony, Bye Pass Road, Jammu).

……Complainant

V e r s u s

1. M/s Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009, through its Director/Managing Director/Authorized Representative.
2. Director/Managing Director/Authorized Representative of M/s Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009.

….. Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:  JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by: Sh.Sachit Kaushal, Advocate for the complainant.

                 Sh.Raj Kumar, Advocate proxy for Sh.J.S. Rattu, Advocate for the opposite parties.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT             

                The complainant has filed this complaint, seeking refund of amount of Rs.16,00,000/- paid by her, till 04.11.2015, to the opposite parties, in respect of residential flat bearing no.EV/  EH4/2BHK-C/401, purchased by her, in their project named “Emerging Height 4”, Emerging Valley, Landran Banur Road, Mohali, Punjab, on the ground that despite receiving substantial amount, referred to above, they (opposite parties) failed to offer possession thereof, for want of construction, basic amenities, necessary approvals/permissions etc. Whereas, on the other hand, at the time of allotment (vide letter dated 06.07.2013 Annexure C-1) of the said unit, it was promised by the opposite parties that possession thereof, will be delivered within a maximum period of three years therefrom. It was averred that the complainant made all possible efforts, by approaching the opposite parties, through every possible means, in the matter, but her grievance was not redressed by them. Legal notice served upon the opposite parties on 04.04.2018 Annexure C-5,  seeking refund of amount paid alongwith interest etc. did not yield any result. It was stated that initially the unit was purchased by husband of the complainant, which was later on, got transferred in her name, in another project of the opposite parties, named ‘Prabh Homes’.

                Compelled under above circumstances, the complainant has filed this complaint seeking refund of amount paid with interest, compensation etc.  

2.         Notice of this complaint, was served upon the opposite parties, as a result whereof, Sh.Savinder Singh Gill, Advocate, put in appearance on 16.07.2018 and filed his memorandum of appearance. The matter was adjourned to 24.08.2018, for filing Vakalatnama and also reply and evidence/affidavit, on behalf of the opposite parties. However, on 24.08.2018, Ms.Harshita Advocate, put in appearance as proxy of Sh.J.S. Rattu, Advocate and filed his  (Sh.J.S. Rattu) vakalatnama, on behalf of the opposite parties. On the request made by her, the matter was adjourned to 24.09.2018 for filing reply and evidence/affidavit, on behalf of the opposite parties.  On the said date, again request was made to grant time for filing reply and evidence/affidavit, on behalf of the opposite parties, which was allowed subject to payment of cost of Rs.3,000/-. The matter was adjourned to 23.10.2018, on which date, on request, again it was adjourned to 21.11.2018, subject of payment of cost of Rs.7,000/-, to file reply and evidence/affidavit, on behalf of the opposite parties. On 21.11.2018, Ms.Harshita Advocate, put in appearance, as proxy for Sh.J.S. Rattu, Advocate for the opposite parties. She placed on record written statement allegedly signed by an authorized representative of the opposite parties namely Pawan Kumar. On the said date, following order was passed:-

 

“Today, Ms. Harshita, Advocate, proxy for Sh.J.S.Rattu, Advocate, Counsel for the Opposite Parties appeared and handed over reply to be filed in this case. The Reader of this Commission found that reply (three sets) have not been signed by the Opposite Parties. Original reply and copies were returned. To get signatures of the Opposite Parties, she went outside and came back and handed over the reply again. Those were signed by one Sh.Pawan Kumar. On becoming suspicious, we ask our Daftri to call Sh.Pawan Kumar in Court. His name was called. However, when he failed to put in appearance, Ms. Harshita, Advocate was asked to bring him in. She went out and disappeared. Annexes mentioned in the reply have not been annexed with the reply. Copies are kept on record. Only for the purpose to know, who has signed copies and why the said person and Advocate disappeared from the Court, adjourned to 07.12.2018.”

 

3.         Since it was suspected by this Commission that the said reply was not signed by the said authorized representative of the opposite parties, as such, above order was passed. Evidence was also not placed on record. Thereafter, Counsel for the opposite parties continued to get dates, to file evidence/affidavit, on behalf of the opposite parties, to support the averments made in the alleged reply filed. On 09.01.2019, again cost of Rs.4,000/- was imposed, and on request made, for placing on record evidence/affidavit the matter was adjourned to 25.01.2019. On the said date also evidence/affidavit was not placed on record, as such, subject to payment of cost of Rs.6000/-, the matter was adjourned to 18.02.2019 for the said purpose. Again, cost of Rs.6000/- was imposed and thereafter the matter was adjourned to 15.03.2019. On the said date, Ms.Harshita, Advocate, admitted that she had signed the written statement placed on record on 21.11.2018. Noting above, it was held by this Commission that the reply placed on record was not worth consideration. Relevant part of the said order reads thus:-

 

“In response to order dated 21.11.2018 passed by this Commission, Ms. Harshita, Advocate has put in appearance and she tendered her apology. She states that she had signed on getting consent of the authorized representative on telephone.

                In our view, such a procedure was not justified. Be that as it may, in view of apology, we are not going to take any further action. Order passed on 21.11.2018 shows that though the reply was taken on record, however, it was not worth consideration.

                In view of reasons given, Ms. Shubhpreet Kaur, Advocate appearing as proxy for Sh. J. S. Rattu, Advocate, Counsel for the opposite parties seeks an adjournment to place on record reply and evidence/affidavit on behalf of the opposite parties.”

 

4.         Faced with the situation, time was sought to file reply and evidence/affidavit, on behalf of the opposite parties. Time was granted subject to payment of cost of Rs.10,000/- and the matter was adjourned to 01.04.2019, on which date, cost imposed on the previous dates, was not paid/deposited. Only a promise was made that cost will be paid on the next date of hearing. Time was also sought to file reply and evidence/ affidavit, on behalf of the opposite parties, as such, matter was adjourned to 12.04.2019, on which date, cost imposed was not paid. However, the matter was got adjourned to 01.05.2019, by stating that there are chances of settlement. On the said date, neither any report was made, if any, settlement is arrived at between the parties; nor previous cost was paid, as referred to above; nor reply and evidence/affidavit, on behalf of the opposite parties were filed. Faced with the situation and noting that there was an attempt to delay the proceedings, arguments were heard in the complaint, in presence of Counsel for the complainant and also Sh.Raj Kumar, Advocate proxy for Sh. J.S. Rattu, Advocate for the opposite parties and the matter was reserved for orders.
5.         The facts mentioned above, clearly indicate that despite numerous opportunities given, the opposite parties have failed to place on record reply and evidence/affidavit. At one point of time, fraudulently, reply was placed on record, however, that was not signed by authorized representative but by the Counsel herself. Due to tendering an apology, we choose not be initiate further proceedings against the said Advocate.

                As on today, the situation is that, there exists no rebuttal to the averments made by the complainant, in her complaint. In the above facts and circumstances, this complaint needs to be decided accordingly.   

6.         The complainant led evidence in support of her case.
7.         We have heard the contesting parties and have gone through the evidence and record of the case filed by the complainant, carefully. 
8.         It has been proved on record that the complainant had paid an amount Rs.16,00,000/- till 04.11.2015, to the opposite parties, towards purchase of residential flat bearing no. EV/      EH4/2BHK-C/401, in the said project. The complainant has specifically alleged that the project in question was launched by the opposite parties without obtaining necessary permissions from the competent authorities and also it has not been made habitable, for want of construction and development activities.

                On account of the reasons given above, written reply placed on record cannot be relied upon, on behalf of the opposite parties, especially, when no supporting documents, in the shape of evidence by way of affidavit, has been placed on record, to support the averments made therein (reply). Accordingly, the allegations levelled by the complainant have gone unrebutted. Since, the allegations levelled against the opposite parties, have gone unrebutted, for the reasons referred to above, now it is required of this Commission to ascertain, as to whether, allegations levelled by the complainant that they (opposite parties) did not obtain necessary permissions to launch the said project and also that the project is not ready, for want of construction and development activities, are correct or not.

                It may be stated here that earlier also a complaint had been filed by one Soniya Kanwar (CC No.105 of 2018, titled as Soniya Kanwar Vs. Emerging Valley Pvt. Limited) before this Commission, against the opposite parties, wherein also, similar allegations were levelled by her and proved by way of documentary evidence, in respect of the same project i.e. Emerging Valley Pvt. Limited, Mohali, Punjab. This Commission while going through the evidence and record of that case, allowed refund of the amount deposited alongwith interest, compensation etc., by holding as under:-

 “……………..It is not in dispute, that the complainant was offered construction linked payment plan and she has paid an amount of Rs.10,82,500/-, when this complaint was filed. It was her specific case that possession of the unit originally allotted or of relocated unit, was not delivered to her, for want of construction and basic amenities. On the other hand, as stated above, the opposite parties are saying that the unit is ready for possession. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, and also that the unit is ready for delivery of possession is on the builder/opposite parties. It was so said by the 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, it is very strange that not even a single document has been placed on record, by the opposite parties, in respect of the unit originally allotted or relocated unit, to prove that construction is complete and they are actually ready for offer and delivery of possession of the same. In case, the unit is ready and all the development activities had been undertaken 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 and construction activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, the opposite parties were also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove their case, but they miserably failed to do that also. At the time of arguments, Counsel for the opposite parties failed to show any valid licence to develop the project, in question. When he was asked about the same, he was silent on this. It may be stated here that earlier also, a consumer complaint, in respect of the same project i.e. Emerging Valley Pvt. Ltd. was filed by one Jaswinder Singh (Jaswinder Singh Vs Emerging Valley Private Limited and others, consumer complaint no. 531 of 2017, decided on 14.05.2018) before this Commission. In that case, Jaswinder Singh had purchased a plot in the said project, yet, possession thereof was not delivered to him. In that case, he placed on record an RTI information/document dated 20.06.2017, 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 promoter failed to fulfill the conditions contained in the said LOI, licence was not issued to it. It was further made clear in the said RTI information that that the promoter was not competent to sell any plot/flat etc. As such, this Commission while going through the facts of that case, ordered refund of the amount paid, alongwith interest compensation, etc., vide order dated 14.05.2018. Relevant part of the order passed in Jaswinder Singh’s case (supra) are reproduced here under:-

 “……………….It is further case of the complainant that even then, when possession was not delivered, he became suspicious and went to the site and was surprised to see that there was no development at all. To his query, as to when possession of the plot will be delivered, no satisfactory reply was given. The complainant came across RTI information supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority. The said information was sought by a similar located allottee, qua Emerging Valley project launched by the opposite parties. The said Authority, vide letter dated 20.06.2017 Annexure C-7, intimated that opposite party no.1 had applied to get licence to develop a colony. Letter of Intent (LOI) was issued. Because the promoter failed to fulfill the conditions contained in the said LOI, licence was not issued to it. It was further said vide the said letter, that the promoter was not competent to sell any plot/flat etc. Translated copy of the said letter reads thus:-

 

“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 Dated 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.”

 

        Thereafter, again the complainant visited the office of the opposite parties but failed to get any positive response, qua delivery of possession of the plot.

    2.     xxxxxxxxxxxxxx…………….

3.     xxxxxxxxxxxxxx……………..

4.     xxxxxxxxxxxxxx…………….

5.     xxxxxxxxxxxxxx…………….

6.     We have heard the contesting parties, and have gone through the evidence, and record of the case, carefully and are of the considered opinion that this complaint deserves to be allowed. It is true that provisional letter in respect of initially allotted plot, measuring 200 square yards, was issued in favour of the complainant on 10.06.2015, Annexure C-2 and in the said letter, a commitment was made to hand over possession of the plot, within a period of three years i.e. upto June 2018. Before exhausting the entire period of three years, this complaint has been filed by the complainant. However, as is reflected in earlier part of this order, even as on today, licence to develop colony i.e. for the project under question, is not available with the opposite parties, as such, it will not be justified to ask the complainant to wait till the end of three years. It is apparent on record that one of the similar situated allottee sought information under the RTI Act, 2005, from the GMADA, as to whether any licence is available with opposite party no.1 to develop the project, in question or not. In the answer, vide letter dated 20.06.2017, it was specifically stated that after issuance of LOI, when the builder failed to fulfill necessary conditions, no licence was granted to it. The promoter was not competent to develop a colony and sell plots, flats etc., in the said project. Opposite parties no.1 and 2 placed on record some documents as  Annexures with the affidavit and an attempt has been made to show that some permissions were available with the builder, to raise the said project, however, in the face of letter dated 20.06.2017 issued by the GMADA, such contention cannot be accepted.

                At the time of arguments also, Counsel for opposite parties no.1 and 2 failed to show any valid licence to develop the project, in question. He only placed reliance on the documents attached with the said affidavit. Those documents came up for consideration, in a similar case, titled as Jarnail Singh Vs. Emerging Valley Private Limited, complaint case no.37 of 2017, decided on 23.05.2017 and this Commission observed as under:-

“Thereafter, during pendency of this complaint, the opposite party moved an application, to place on record some more documents Annexure R-4 to R-11, which was allowed on 06.04.2017, subject to payment of costs. Those documents are taken on record. Perusal of those documents indicate that when the project, in dispute, was launched, not even a single approval granted by the Competent Authorities, was available with the opposite party. Subject to many conditions, CLU was granted on 04.07.2013 and thereafter, in continuation to the said letter, another letter was issued on 23.09.2013 Annexure R-5. As per conditions imposed, before starting the development in the project, it was necessary for the opposite party to get licence, as per terms and conditions of The Punjab Apartment and Property Regulation Act, 1995 (PAPRA). NOC from Punjab Pollution Control Board (PPCB) was to be obtained before start of development. Other permissions like environmental in terms of Notification dated 14.09.2006; NOC from the Forest Department etc., were also to be got issued. Document Annexure R-6 indicates that to make arrangements for treatment and disposal of sewerage, communication was sent by the GMADA, only on 20.11.2015. As per information supplied through document Annexure R-7, it was indicated that some land falling in the project was mutated, in the name of the opposite party, in the year 2015. Perusal of photographs placed on record Annexure R-11, also makes it very clear that within the project only, wherein an alternative unit was offered, the development/construction appears to be incomplete. The facts brought on record by the opposite party itself, make out a case in favour of the complainant. It is admitted in the written statement itself and also at the time of arguments by Counsel for the opposite party that in the project, when the unit was initially sold to the complainant in the year 2012, construction had not started at all.

                Without discussing anything further, on the basis of this admission itself, it can safely be said that the opposite party was guilty of providing deficient service to the complainant and refund of the amount deposited, can be ordered accordingly.

                Be that as it may, it is on record that there is nothing to show that any permission was available with the opposite party when project was sold in the year 2012. To launch the project, without getting necessary permissions/approvals, would amount to unfair trade practice. Similar view was expressed by the National Commission in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016. In that case, it was held as under:-

“We are unable to persuade ourselves to agree with the ld. counsel.  While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

                6.    We are in complete agreement with the view taken               by the State Commission. ”

The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched.”

 

7.     In view of above fact, the complaint filed, cannot be termed as premature. The complainant has virtually been duped. The project was sold by the opposite parties, without getting approvals/licence.  Such an act would amount to unfair trade practice. It may be stated here that earlier also, against the same Company/(Emerging Valley Pvt. Ltd.), in Naveen Goel and another Vs. Emerging Valley Private Limited, consumer complaint bearing no.218 of 2015, decided by this Commission on 17.02.2016, it was held as a matter of fact that when the project was sold, even Change of Land Use (CLU) was not in the hands of the opposite party. Even Letter of Intent (LOI) was released thereafter. First Appeal bearing no.278 of 2016 filed against the order dated 17.02.2016, was dismissed, in limine,  by the National Commission, vide order dated 18.04.2016.

                In view of above, the complainant is entitled to get refund of the amount paid by him.”

 

In the present case also, as stated above, there is a complete violation of the provisions of the PAPRA and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite parties.”

 

                In view of above, it is held that the opposite parties, by launching and selling the project, in question, without obtaining necessary licence/permissions, were deficient in rendering service and also adopted unfair trade practice. Money was usurped from the complainant, by duping her, on false assurances that possession of the built-up flat, in a developed project will be delivered to her, whereas, it was not so done.  The opposite parties did not prefer to counter the allegations levelled by the complainant, by way of filing reply, evidence/affidavit, which in itself is sufficient to prove that they have nothing to say in their defence.

                 At the same time, we did not find anything from the record, to hold contrary regarding pecuniary or territorial jurisdiction of this Commission or regarding status of the complainant, as a consumer. The complaint, thus, deserves to be allowed and the complainant is held entitled for refund of the amount paid alongwith interest, compensation and litigation expenses.

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

1. To refund the amount of Rs.16,00,000/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs. 50,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
4. The payment of awarded amounts, in the manner  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 @15% p.a., instead of @12%, 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.

10.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
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.

10.06.2019

Sd/-

 

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Sd/-

 

(RAJESH K. ARYA)

 MEMBER

 

 

Rg.