Chandigarh

DF-I

CC/126/2021

Smt. Manpreet Kaur - Complainant(s)

Versus

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

Sudhir Gupta

03 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/126/2021
Date of Institution	:	01/03/2021
Date of Decision	:	03/07/2023

 

1. Smt. Manpreet Kaur wife of Sh. Jarnail Singh
2. Jarnail Singh son of Sh. Hazur Singh

Both residents of village and Post Office Shatirwala, Tehsil Fazilka, District Fazilka, Punjab 152121.

… Complainants

V E R S U S

1. M/s Emerging India Real Assets (P) Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu, present address Shop No.3, Sante Majra, Opposite Devine World, Kharar, District SAS Nagar (Mohali) earlier address SCO 46-47, 1^st Floor, Sector
   9-D, Near Matka Chowk, Madhya Marg, Chandigarh 160009.
2. M/s Emerging Valley Private Limited, Corporate Office, SCO 46-47, 1^st Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh 160009 through its Managing Director.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Devinder Kumar, Vice Counsel for Sh. Sudhir Gupta, Counsel for complainants
	:	Sh. J.S. Rattu, Counsel for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Smt.Manpreet Kaur and another, complainants against the 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 the OPs had launched a project under the name and style of “Emerging World” (hereinafter referred to as “subject project”) for the sale of flats etc. and the complainants were approached by their authorised representative/agent namely Lakhwinder Singh. Being allured, complainants booked a 2 BHK flat bearing No.103/E in the subject project. At that time, OPs had assured the complainants that they had taken the necessary permission of change of land use with respect to the legal construction of apartment from the Govt. and appropriate authorities. The complainants had booked the apartment for study/occupation etc. of their children/grandchildren. The complainants started making payment to the OPs as per the payment plan and had paid an amount of ₹33,80,000/-.  In addition to the aforesaid payment, complainants have also paid an amount of ₹36,000/- towards purchase of stamp papers and the said payment was confirmed by the OPs through payment confirmation letter. However, without taking the complainants into confidence and without intimation to them, OPs had even changed the location and identity of the flat and charged extra payment against the settled sale proceed of the said flat in violation of the contract and thereby executed sale deed dated 17.10.2017 (Annexure C-14) in favour of complainant No.1.  The OPs had also compelled the complainants to pay an additional amount of ₹9,00,000/- at the time of execution of sale deed.   The aforesaid acts of the OPs amounts to deficiency in service and unfair trade practice on their part.  However, later on, when complainants visited the spot, they found that whatever incomplete construction was raised by the OPs at the site, same was demolished and on further enquiry it was found that since OPs did not comply with the statutory requirements of Govt. Departments, the said construction was ordered to be demolished and the same is also shown in photographs (Annexure C-20).  Due to the aforesaid acts of the OPs, complainants have suffered a lot.  OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, mis-joinder/non-joinder of necessary parties, complainants are habitual defaulters and also that the complainants are not consumer and they required to approach the arbitrator as per the arbitration agreement. On merits it is admitted that the subject flat was sold to the complainants, but, denied that the possession of the same was not handed over to the complainants. In fact, registry and possession of the subject flat was handed over to the complainants in the year 2017. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainants 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, complainants tendered/proved evidence by way of affidavit and supporting documents. However, as OPs failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 31.1.2023 of this Commission, opportunity to file the same was closed.
3. We have heard the learned counsel for the 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 parties that initially a 2 BHK residential flat (EV/EH4/2BHK-E-104) was provisionally allotted to complainant No.2-Jarnail Singh by OPs for sale consideration of ₹33,80,000/- and later on, said sale consideration was adjusted in another flat (PH-04 FF-11) in the said project by executing the sale deed (Annexure C-14), the case is reduced to a narrow compass as it is to be determined if OPs had raised the construction of the subject project without obtaining the necessary permissions/approvals/sanctions from the competent authorities and had received total amount of ₹42,80,000/- from the complainants and the aforesaid act amounts to unfair trade practice on the part of OPs and the complainants are entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainants, or if the consumer complaint of the complainants is not maintainable and the same is liable to be dismissed, as is the defence of the OPs.
   2. In order to prove their case, in addition to affidavit of complainant No.1, complainants have also tendered/proved provisional allotment letter dated 21.11.2013 (Annexure C-2) which indicates that vide provisional allotment No.EV/EH4/2BHK-E-104 a 2BHK flat was allotted to complainant No.2 by the OPs.  Annexure C-3 to C-11 are the receipts through which total amount of ₹33,80,000/- has been received by the OPs from the complainants. Annexure C-13 is the copy of possession letter dated 13.10.2017 which clearly indicates that flat No.PH-04 FF-11 was allotted to complainant No.1, who is admittedly wife of complainant No.2. Annexure C-14 is the copy of sale deed dated 17.10.2017 executed by the OPs in respect of the said flat in favour of complainant No.1.  Annexure C-15 is the copy of confirmation letter dated 28.2.2019 qua the no dues which indicates that the entire sale consideration has been received by the OPs from the complainants qua the subject flat.  Annexure C-16 is copy of legal notice issued by the complainants through which they had only sought relief qua the refund of the amount of ₹33,80,000/- + ₹36,000/- towards stamp charges alongwith interest and had not made any prayer for the possession of the flat.  Annexure C-20 is the sheet containing the photographs showing that the flats have been partially demolished on the spot in the subject project. 
   3. On the other hand, OPs have not led any evidence to prove their defence and also to prove that they had taken the requisite permissions/approvals/licences etc. from the competent authorities for launching the aforesaid project and that they were authorised to sell the flats in the said project.
   4. Moreover, 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 complainants 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, it is 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, complainants cannot be penalized by postponing the possession.  In this regard, reference can be made to the 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…..”

 

5. It has thus been proved on record that money had been collected from the prospective buyers including the complainants, 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…………”

6. The complainants have 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.
7. 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.”

 

8. The consumer complaint is further resisted by the OPs on the ground that the complainants were required to approach the arbitrator in case they were aggrieved against the OPs and the consumer complaint of the complainants 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.
9. The consumer complaint of the complainants is also resisted by the OPs on the ground that the complainants are not consumer since they already own house at Fazilka and the investment was made for commercial transaction. However, the defence of the OPs is without merit as merely by having own house does not bar the complainants from booking another plot/flat for their family and does not stop the person from becoming a consumer, especially when the OPs have not led any evidence in this regard.
10. At the time of arguments, learned counsel for the complainants stated that the complainants do not press their claim qua the possession of the subject flat as the OPs have failed to obtain the necessary permissions from the concerned authorities and also that their project has been demolished on the spot.
11. So far as the claim of the complainants that they are entitled for the refund of the amount of ₹42,80,000/- is concerned i.e. ₹33,80,000/- which was paid to the OPs, and was also acknowledged by them before the execution of the sale deed, and an amount of ₹9,00,000/- paid to the OPs at the time of execution of the sale deed, the additional payment of ₹9,00,000/- stands falsified from the legal notice (Annexure C-16) itself issued by the complainants which nowhere indicates about payment of ₹9,00,000/-, as claimed by the complainants, rather the complainants have only claimed an amount of ₹33,80,000/- + ₹36,000/- (towards stamp charges) as is also evident from the second last paragraph of the notice.  Not only this, complainants have also failed to prove on record any receipt, showing that an amount of ₹9,00,000/- was paid at the time of execution of the sale deed. However, the recital in the sale deed showing sale consideration of ₹9,00,000/- is of no consequence, especially when it is an admitted case of the complainants that the earlier payment of ₹33,80,000/- was adjusted as sale consideration in the subsequent flat i.e. the subject flat regarding which sale deed was executed and the complainants have failed to prove on record that they had also paid an amount of ₹9,00,000/- to the OPs in addition to the total sale consideration of ₹33,80,000/-.  In this manner, complainants are only entitled to an amount of ₹33,80,000/- + ₹36,000/- towards stamp papers alongwith interest and compensation etc. and not ₹42,80,000/-. 
12. In view of the aforesaid discussion, it is safe to hold that the complainants have 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 amounts of ₹33,80,000/- + ₹36,000/- (as mentioned above) to the complainants alongwith interest @ 9% per annum from the respective date(s) of payment till realisation of the same.  However, it is further clarified that on receiving the entire amount by the complainants from the OPs, the complainants shall surrender the ownership and possessory title qua the subject flat to the OPs, without having any right, title or interest with the sold flat through sale deed (Annexure C-14) and the OPs shall get the sold flat legally transferred in their favour through competent authorities and the complainants shall assist the OP for the same.
2. to pay an amount of ₹35,000/- to the complainants as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants 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. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 03/07/2023 hg			Sd/-  [Pawanjit Singh] President
			Sd/-  [Suresh Kumar Sardana] Member