Chandigarh

StateCommission

CC/34/2020

Amrik Singh - Complainant(s)

Versus

M/s Emerging India Real Assets Pvt. Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma Adv.

30 Jun 2022

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	34 of 2020
Date of Institution	:	30.01.2020
Date of Decision	:	30.06.2022

 

Amrik Singh aged about 74 years S/o Sh. Harbans Singh R/o K. No. 545, Sector 60, Phase 3B1, Mohali.

……Complainant

V e r s u s

 

1. M/s Emerging India Real Assets (P) Limited, through its Managing Director Sh. Gurpreet Singh Sidhu Present Address, Adab City Centre, SCO No. 3, Adjoining YES Bank, Opposite Subway and Café Coffee Day, Kharar Landran Road, Sector 114, Mohali. Earlier Address SCO No. 46-47, 1st Floor, Sector 9-D, Chandigarh.

 

2. M/s Emerging India Housing Corporation Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1st Floor, Sector 9 D, Chandigarh.

 

3. M/s Emerging Valley Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1 Floor, Sector 9-D, Chandigarh.

....Opposite parties

 

================================================================

 

Complaint case No.	:	35 of 2020
Date of Institution	:	30.01.2020
Date of Decision	:	30.06.2022

 

Anil Kumar Sood S/o Late Sh.Hari Ram Sood, R/o Harison Building, Akhara Bazar, Kullu, Himachal Pradesh.

……Complainant

V e r s u s

 

1. M/s Emerging India Real Assets (P) Limited, through its Managing Director Sh. Gurpreet Singh Sidhu Present Address, Adab City Centre, SCO No. 3, Adjoining YES Bank, Opposite Subway and Café Coffee Day, Kharar Landran Road, Sector 114, Mohali. Earlier Address SCO No. 46-47, 1st Floor, Sector 9-D, Chandigarh.

 

2. M/s Emerging India Housing Corporation Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1st Floor, Sector 9 D, Chandigarh.

 

3. M/s Emerging Valley Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1 Floor, Sector 9-D, Chandigarh.

 

 

....Opposite parties

 

================================================================

 

Complaint case No.	:	46 of 2020
Date of Institution	:	13.02.2020
Date of Decision	:	30.06.2022

 

Raksha Sharma aged 49 years W/o Sh.Daya Ram, R/o Village Kanda, Tehsil Chopal, District Shimla, Himachal Pradesh.

……Complainant

V e r s u s

 

1. M/s Emerging India Real Assets (P) Limited, through its Managing Director Sh. Gurpreet Singh Sidhu Present Address, Adab City Centre, SCO No. 3, Adjoining YES Bank, Opposite Subway and Café Coffee Day, Kharar Landran Road, Sector 114, Mohali. Earlier Address SCO No. 46-47, 1st Floor, Sector 9-D, Chandigarh.

 

2. M/s Emerging India Housing Corporation Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1st Floor, Sector 9 D, Chandigarh.

 

3. M/s Emerging Valley Pvt. Ltd. through its Managing Director, Sh. Gurpreet Singh Sidhu, SCO No. 46-47, 1 Floor, Sector 9-D, Chandigarh.

....Opposite parties

 

===============================================================

Present in all three cases:-

                      Sh.Rajesh Verma, Advocate for the complainants.

                      Sh.J.S. Rattu, Advocate for opposite parties.

                      Sh.Gurpreet Singh Sidhu (presently lodged in Model Jail, Burail, Chandigarh) in person.

 

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BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   By this order, we propose to dispose of the aforesaid three consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, seeking refund of the amount paid alongwith interest; compensation etc., as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties because there has been an inordinate delay with regard to delivery of  actual physical possession of the respective units booked by them, in their (opposite parties) project, for dearth of construction and development activities; and also necessary permissions/sanctions/approvals have not been obtained from the competent Authorities for launching the project, wherein the units in dispute are located. Details with regard to the project in dispute; units booked by the complainants; payments made by them etc. of these complaints are given below:-

 

CC No.	34 of 2020	35 of 2020	46 of 2020
Project name	Emerging Valley, Prabh Homes, Landran Banur Road, Mohali, Punjab	Emerging Valley, Prabh Homes, Landran Banur Road, Mohali, Punjab	Emerging Valley, Emerging Height III, Sante Majra, Had Bast No.186, Tehsil Kharar, District SAS Nagar, Mohali (Relocated from Emerging Valley, Landran Banur Highway, Punjab)
Booking date of unit	30.04.2014	04.04.2013	01.08.2014
No. and area of the unit	PH-08, GF-22, 2 BHK, 1350 square feet	PH-14, GF-40, 3 BHK, 1350 square feet	J-601, 6th Floor, 522 square feet, (Relocated from OBA D-3005, 1 BHK, 456 square feet)
Total cost of the unit	2691000.00	2900000.00	20,50,000.00
Amount paid as per the complainants	2690850.00 (30.04.2014  to 24.03.2017)	2900000.00 (04.04.2013  to 17.11.2018)	24,68,500.00 (01.08.2014 to 10.09.2016)
Agreement	Not executed	21.06.2019	Not executed
Possession date	31.12.2016 (promised vide letter dated 30.09.2016, Annexure C-7) 15.05.2019 (promised vide letter dated 26.03.2019, Annexure C-8)	04.04.2016 (reasonable period of three years from the date of booking)	01.08.2017 (reasonable period of three years from the date of booking)
Possession delivered or not	Not delivered	Paper possession offered on 21.06.2019	Paper possession offered on 15.10.2016
Delay in years	More than 8 years from booking	More than 7 years from booking	More than 8 years from booking

         

3.           In CC No.35 of 2020, it has been stated by the complainant that though possession of the unit was offered on 21.06.2019 and sale agreement was also executed on the same day, yet, it was nothing but a paper possession, because neither construction of the unit was complete nor the opposite parties obtained occupation and completion certificates from the competent Authorities. Even necessary permissions like licence, CLU etc. have also not been obtained by the opposite parties for launching the project and selling the units therein.
4.           In CC No.46 of 2020, it has been stated by the complainant that though initially she was allotted unit no. OBA D-3005, 1 BHK, 456 square feet, yet, thereafter, the opposite parties showed their inability to provide the said unit. As such, under compelling circumstances, she was relocated to another unit in Emerging Height III, Sante Majra, Had Bast No.186, Tehsil Kharar, District SAS Nagar, Mohali, for an amount of Rs.20,50,000/-. The amount of Rs.8,50,000/- already paid against the original unit was adjusted in the relocated unit. Thereafter, the complainant raised housing loan from the Axis Bank and made payment of Rs.14,75,000/- to the opposite parties towards relocated unit. Thereafter, the opposite parties vide registered sale deed dated 15.10.2016, Annexure C-7 transferred 1/2474 share of the land in favour of the complainant. Though, the opposite parties in the sale deed claimed that they have delivered possession of relocated unit to the complainant, yet, the same was nothing but a paper  possession, because neither construction of the unit was complete nor the opposite parties obtained occupation and completion certificates from the competent Authorities.
5.           Hence these complaints.  
6.           The claim of the complainants, in all the three complaints has been contested by the opposite parties, on numerous similar grounds,  inter alia:-
   1. that in CC No.34 of 2020, the complainant was defaulter in making payment towards price of his unit as he had paid only an amount of Rs.25,60,800/- against total sale consideration of Rs.30 lacs and that the payment made against pass book at page 31 is denied ;
   2. that the complainants did not fall within the definition of “consumer” as the units in question were purchased for commercial purposes;
   3. 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;
   4. that registered office of the company has not been made party to these complaints as such the same are not maintainable;
   5. that the privity of contract if any of the complainants was with the company as such these complaints are bad for misjoinder/nonjoinder of necessary parties;
   6. that the complainants have concealed material facts from this Commission;
   7. that this Commission did not vest with pecuniary and territorial jurisdiction to entertain and decide these complaints;
   8. that these complaints are barred by limitation;
   9. that all the approvals have been obtained from the competent authorities to launch the said project;
   10. that all permissions/approvals were shown to the complainants at the time of booking of the units in question; and
   11. that because 100% payment was not made by the complainants therefore buyers’ agreement were not executed between the parties.
7.           In CC No.35 of 2020 it has been additionally stated that:-
   1. that provisional allotment letter sent to the complainant was not returned back to the company;  and
   2. that only an amount of Rs.25,99,000/- stood received by the company and the bank passbook entry at Sr. no.1 is denied.

 

8.           Similarly, in CC No.46 of 2020, it has been additionally stated that:-
   1. that the complainant has not paid even a single penny to the opposite party named Emerging India Real Assets Pvt. Ltd. towards price of the unit in question; and
   2. that the payment receipts/documents Annexure C-6 relates to Emerging India Housing Corporation and payment is made towards project named Emerging Heights-III.
9.           The contesting parties led evidence in support of their cases.
10.           We have heard the contesting parties and have gone through the entire record of these cases, including the written arguments, very carefully.
11.           First of all, coming to the objection raised with regard to jurisdiction of this Commission with regard to settlement of these cases through an Arbitrator, 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 (though in the present case, no such agreement has been executed) between the complainant 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 opposite parties, in this regard, stands rejected.
12.           Now coming to the objection taken to the effect that the complainants 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 complainants, in these complaints, have purchased the units 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 complainants are consumer as defined under the Act. As such, objection taken in this regard stands rejected.
13.           Now coming to the objections raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant cases, record reveals that almost all the letters/documents  placed on record which have been issued by  the opposite parties mentioning the address of the  company thereon as SCO No.46-47, First Floor, Sector 9-D, Chandigarh i.e. payment receipts dated 28.05.2014, 08.09.2014, 20.01.2015,  03.09.2015, 25.11.2015, 26.05.2016, (Annexure C-5 colly.), confirmation letter dated 19.08.2019, Annexure C-6, offer of possession letter dated 30.09.2016, Annexure C-7 and possession letter dated 26.03.2019, Annexure C-8, respectively (in CC No.34 of 2020);  possession letter dated 21.06.2019, Annexure C-5 and sale agreement Annexure C-6, (in CC No.35 of 2020) and payment receipts dated 01.08.2014, 07.08.2014, 08.05.2015, 01.09.2015, 16.02.2016, 10.09.2016 and payment confirmation letter dated 10.09.2016, Annexure C-5 (in CC No.46 of 2020), meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Office at Chandigarh and personally work for gain thereat. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
14.           Now coming to the objection taken regarding pecuniary jurisdiction, it may be stated here that these complaint have been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any. In these complaints, if the total value of the respective units and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore, respectively. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
15.           There is no dispute with regard to purchase of respective units by the complainants, as per the details mentioned in the chart above. There is also no dispute with regard to the fact that despite the fact that in these complaints, substantial amounts, referred to above, were received by the opposite parties-Company, from the complainants, yet, agreements have not been executed between the parties. Agreement to sale has been executed only in CC No.35 of 2020 and that too after a huge delay on 21.06.2019. There is also nothing on record that actual physical possession of the respective units, complete in all respects, i.e. after obtaining occupation and completion certificates has been delivered to the complainants.   

                   It may be stated here that once the opposite parties, in the first instance, had already received substantial amounts, from the complainants, it was required of them to execute agreements under law within a reasonable period say two to three months; raise demands in accordance with the stage of development at the project site; complete the construction/development work; obtain occupation and completion certificates from the competent authorities; and then offer and deliver possession of the units in dispute to the complainants. However, instead of doing that, it is evident from the record that the opposite parties were interested only in raising demands from the complainants.  Thus, the act of raising demands and receiving substantial amounts in the respective complaints, as referred to above, without executing the agreements, was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act,  which lays a duty on the opposite parties to execute the agreements for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -

“6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;

Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.

(2) xxxxxxxxxxxxxxxx……………...

(3) xxxxxxxxxxxxxxxxx……………….”

 

The opposite parties were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in these cases, the said provision has been violated. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.

16.           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, it is evident from the payments receipts that all the payments in respect of the respective units have been received by Emerging Valley Private Limited, Managing Director of which is admittedly Sh.Gurpreet Singh Sidhu. It is also in the knowledge of this Commission which has been gathered from similar cases decided by this Commission in respect of the same very project that Sh.Gurpreet Singh Sidhu, Managing Director is running number of companies under the names Emerging Valley Private Limited, M/s Emerging India Real Assets (P) Limited, M/s Emerging India Housing Corporation Pvt. Ltd. etc. which all are sister concerns and amounts against the units are received from prospective buyers by issuing receipts under different names of the companies, mentioned above.  However, it is significant to mention here that in a case titled as Anjali Dogra Vs. Emerging Valley Private Limited, Complaint case No. 80 of 2019, decided by this Commission on  04.01.2021, in respect of the same very project i.e. Emerging Valley, the complainants therein had placed on record RTI information dated 20.06.2017 supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority, wherein, it was intimated that the said opposite parties 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 letter 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.”

 

17.           Not only as above, even in Complaint case No. 222 of 2019, Reeta Kumari Sharma Vs. Emerging Valley Private Ltd. decided by this Commission on 05.04.2021 also, vide order dated 20.02.2020, this Commission sought information from the GMADA to apprise with regard to the status of approvals of the project in question i.e. Emerging Valley Private Ltd.. The GMADA vide letter dated 05.03.2020 in a very clear cut manner had informed this Commission that letter of intent had been  granted to the opposite parties in respect of the project in question, yet, the same stood cancelled. During the course of arguments, it has  been brought to the notice of this Commission by Counsel for the complainants that the project of the opposite parties has been demolished by the competent Authorities. It is pertinent to mention here that a similar controversy with regard to demolition of the project in question also, came up for adjudication before this Commission 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. However, to convince ourselves, 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. However, 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”

 

18.           At the same time, in the present cases also, the opposite parties have failed to place on record any document wherefrom it could be revealed that all the necessary approvals were obtained by them before launching the project or even thereafter. At the time of arguments also, we specifically asked Counsel for the opposite parties, in these complaints, he orally stated that the approvals/sanctions have been obtained from the competent authorities, yet, he failed to bring the same on record. Under these circumstances, an adverse inference can easily be drawn that the opposite parties did not have approvals/sanctions in respect of the project in question. Furthermore, it is settled law that onus to prove the stage and status of construction and development work at the project, and that all the permissions/approvals have been obtained in respect of the project in question, is on the builder/developer. 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. It is very strange that in the present cases, not even an iota of evidence has been placed on record by the opposite parties to prove that the project in question is in existence or not.   
19.           From the peculiar circumstances of this case, 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 deals with the opposite parties-Company 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 deals with an intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part. The complainants were thus caused mental agony, harassment and financial loss at the hands of the opposite parties, as they were deprived of their houses and also the amount paid by them towards their respective units were utilized by the opposite parties without providing them anything except paper possessions.
20.           We are of the considered opinion that in view of the facts and circumstances of these cases, we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project accompanied by occupation and completion certificates by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken 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 Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present cases also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if in the present cases also, we order refund of the amounts paid alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited and also by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019;  and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 wherein interest @12% p.a. was awarded, that will meet the ends of justice.
21.           As far as objection taken to the effect that the Managing Director of the Company has been wrongly impleaded in his personal capacity, as there was privity of contract between the companies only, it may be stated here that the Managing Director, in our considered opinion, is holding such important position in the Company, where he is directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017.

                   Furthermore, since the entire transaction took place between the complainants and the company at Chandigarh Office of the opposite parties at SCO No.46-47, First Floor, Sector 9-D, Chandgiarh-160009 and at no point of time, any transaction was carried out with the alleged Registered Office of the company, as such, objection of misjoinder/nonjoinder of parties taken in this regard by the opposite parties stands rejected.

22.           However, since the opposite parties have disputed some amounts paid by the complainants in the respective complaints, as such, it is necessary to decide this issue also, before concluding these complaints.

                   In CC No.34 of 2020, it has been stated by the opposite parties that the complainant has paid only an amount of Rs.25,60,800/- and not Rs.26,90,850/-. It is submitted here that we have gone through the payment confirmation letter dated 19.08.2019, Annexure C-6, issued by the opposite parties in favour of the complainant, wherein receipt of amount of Rs.26,90,850/- in respect of the unit has been candidly admitted by the opposite parties.

                   As far as payments made in CC No.35 of 2020 is concerned, it may be stated here that in this case also, there is receipt dated 21.06.2019 signed by Sh.Gurpreet Singh Sidhu, Managing Director of the Company, who has acknowledged the receipt of Rs.29 lacs from the complainant. Not only as above, in this case, the complainant has placed on record document dated 23.01.2020, Annexure C-3 with regard to entries in saving account of Bank namely J.K. Bank Limited, Kullu, which clearly shows that the total amount of Rs.29 lacs stood paid to the opposite parties in respect of the unit in question.                 Similarly, in CC No.46 of 2020, it is coming out from the payment receipts and also acknowledgment of the opposite parties that the total amount of Rs.24,68,500/- stood paid by the complainant in respect of the unit in question. In this view of the matter, objection taken by the opposite parties in this regard, especially on the face of payment receipts and acknowledgment given by the company itself regarding receipt of respective amounts from the complainants against their respective units,  stands rejected.

23.           At the same time, it is also held that since it is an admitted fact that actual physical possession of the respective units was not delivered to the complainants by the opposite parties even by the date, these complaints have been filed, as such, there is a continuing cause of action in favour of the complainants to file these complaints, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard therefore stands rejected.
24.           For the reasons recorded above, all these three complaints are partly accepted with costs, in the following manner:-

 

In CC No.34 of 2020, the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.26,90,850/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, 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. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To 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.75,000/- to the complainant 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.

 

In CC No.35 of 2020, the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.29,00,000/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, 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. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To 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.75,000/- to the complainant 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.

 

In CC No.46 of 2020, the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.24,68,500/- to the complainant, alongwith interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, 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. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To 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.75,000/- to the complainant 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.

 

25.           However, it is made clear that the Bank(s)/financial institution(s), if any, from which the complainants in their respective complaints have raised housing loan for making payment towards their respective units, shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants against their respective units.
26.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
27.           The files be consigned to Record Room, after completion.

Pronounced

30.06.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.