Chandigarh

DF-I

CC/472/2020

Vijay Kumar Kochhar - Complainant(s)

Versus

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

Rajesh Verma

02 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/472/2020
Date of Institution	:	20/10/2020
Date of Decision	:	02/06/2023

Vijay Kumar Kochhar aged 45 years s/o Late Sh. Sushil Kumar Kochhar r/o Flat No.505, HEWO Apartments, Plot No.GH 42, Sector 56, Gurgaon.

… Complainant

V E R S U S

M/s Emerging India Real Assets (P) Ltd. through its Managing Director Sh. Gurpreet Singh Sidhu s/o Sh. Nachhattar Singh (Numberdar) r/o Dhaba Kokrian, PO Bahader Kherha, Tehsil Abohar, District Fazilka 152116.

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Rajesh Verma, Counsel for complainant
	:	Sh. Jasjit Singh Rattu, Counsel for OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Vijay Kumar Kochhar, complainant against the opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the OP had distributed brochures and pamphlets for its project namely “Emerging Valley” at village Naugiari for the sale of different types of plots as well as flats whereby agents of the OP had allured the public.  After going through the said brochure/pamphlets, father of the complainant namely late Sh. Sushil Kumar Kochhar was also allured by the agents of the OP, and he applied for a plot measuring 250 sq. yards for personal use and occupation of his family members in the said project vide application No.090508 dated 31.10.2011 (Annexure C-2) by paying an amount of ₹1,01,000/- through cheque dated 31.10.2011 (Annexure C-3) alongwith the application. On the demise of his father, complainant is his legal heir.  The OP vide certificate dated 3.12.2011 (Annexure C-4) had declared the father of the complainant as winner of a 250 sq. yards plot and allotted docket No.264 in the draw of lots held on 3.12.2011.  On this, father of the complainant had further paid a sum of ₹8,87,125/-, which was duly acknowledged by the OP vide receipt dated 14.12.2011 (Annexure C-5). As per payment schedule, father of the complainant continued making payment from time to time to the OP even exceeding the amount of ₹32,93,750/- which was the net sale price of the plot fixed by the OP and the complainant has attached all the receipts issued by the OP acknowledging the said payment.  Later on, OP had executed sale deed dated 29.9.2015 (Annexure C-10) qua the aforesaid plot by receiving the amount of ₹23,300/- for registration of sale deed and sanction of mutation etc. Thereafter, when the complainant approached the OP in order to know about the delivery of possession of the plot, he was informed by the OP that the land, already sold in the name of his father, was not owned by the OP, it was ready to transfer another plot having docket No.BA-24 (hereinafter referred to as the “subject plot”) in lieu of the earlier plot, in favour of the complainant on making payment of ₹1,28,300/-.  As there was no other option with the complainant, another sale deed dated 27.6.2017 (Annexure C-12) was executed by the OP in his favour. However, when the complainant again enquired about the status of the subject plot with its physical possession, he came to know that again the OP had not developed the subject plot by obtaining necessary permissions/sanctions/approvals etc. from the competent authorities and in this manner, he again felt cheated by the OP.  After doing some research qua the status of the subject plot, the complainant came to know that even no licence to develop the colony was issued by the competent authority i.e. GMADA in favour of the OP and in this manner the aforesaid act of the OP amounts to unfair trade practice.  Not only this, by not obtaining necessary approvals/sanctions from the competent authority as the OP had started advertising and demanding money from the prospective buyers and thereby collected huge amount from the buyers, including the complainant, the said act of the OP was clear violation of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred to as “PAPRA”). OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, mis-joinder/non-joinder of necessary parties and also that the complainant is not consumer and he is required to approach the arbitrator as per the arbitration agreement. On merits, it is admitted that the subject plot was sold to the complainant, but, denied the allegation that the possession of the same was not handed over to the complainant. In fact, registry and possession of the subject plot was handed over to the complainant 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 complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove his case, complainant tendered/proved evidence by way of affidavit and supporting documents. However, as OP failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 16.2.2023 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 earlier OP had executed sale deed dated 29.9.2015 (Annexure C-10) qua the plot measuring 250 sq. yards in favour of the father of the complainant namely Sh. Sushil Kumar Kochhar by receiving huge amount from him and later on when the complainant approached the OP in order to know about the status of the possession of the said plot, OP offered another plot i.e. the subject plot in the same project and OP had received total amount of ₹38,77,850/- from the father of complainant as well as complainant as sale consideration of the subject plot, and after accepting the said offer of OP, another sale deed dated 27.6.2017 (Annexure C-12) was executed by the OP in favour of the complainant in respect of the subject plot, the case is reduced to a narrow compass as it is to be determined if OP was not having necessary permissions/approvals/sanctions from the competent authorities before advertising and selling the subject plot and the said act amounts to deficiency in service and unfair trade practice on its part and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the complainant has no cause of action against the OP and the consumer complaint of the complainant is liable to be dismissed, especially when the complainant has not approached the arbitrator for redressal of his grievance, as is the defence of the OP.
   2. Annexure C-10 is the copy of sale deed dated 29.9.2015 which clearly indicates that the OP had executed the sale deed through its authorised signatory in favour of father of complainant namely Sh.Sushil Kumar Kochhar qua the land measuring 8.33 marla (250 sq. yards). Annexure C-12 is copy of another sale deed dated 27.6.2017 executed by the OP through its authorised signatory which indicates that OP had transferred plot having docket No.BA-24 i.e. the subject plot in favour of the complainant.  Thus, one thing is clear from the copies of aforesaid sale deeds executed by the OP earlier in favour of father of complainant and subsequently in favour of complainant that the entire case of the parties is revolving around the fact if OP was having necessary permissions/sanctions/permissions etc. from the competent authorities i.e. GMADA etc. under the relevant Acts, including PAPRA, which makes it mandatory that before advertising and demanding money from the prospective buyers, necessary permission is required by the promoters/builders.
   3. Annexure C-13 is one of the most material document available on file which clearly indicates that a similarly situated prospective buyer had sought information under RTI from GMADA if OP/promoter had obtained permission/licence from the competent authority in response to which it was informed to the said applicant vide letter dated 20.6.2017 (Annexure C-13) that as M/s Emerging Valley Private Limited who applied for setting up a colony at village Nogiari, District SAS Nagar could not fulfil the conditions of letter of intent, licence was not issued to the promoter and the promoter of the colony cannot sell a plot, flat and both without taking the licence. Thus, one thing is further clear from the aforesaid letter that till June 2017, OP was not having any licence from the competent authority for the sale of plot/flats and as it stands proved on record that the OP had executed the first sale deed on 29.9.2015 in the name of father of complainant and later on executed the sale deed dated 27.6.2017 (Annexure C-12) in favour of complainant, and even at that particular time it was not having the requisite licence in its favour, it is also clear that the OP has violated mandatory provisions of PAPRA and thereby cheated the public, including the complainant, especially when OP, even during the pendency of instant consumer complaint, has failed to produce any licence in its favour in order to show that requisite licence/approval was obtained by it from the competent authority and it is safe to hold that the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP.
   4. Moreover, OP has failed to clarify this Commission by leading any evidence or making any defence as to why it had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OP to obtain all the approvals/clearances before booking the subject flat/plot.  If the OP chose to accept the booking without obtaining the approvals/clearances or amended clearances, it is only itself to blame for the same as the purchaser of the subject flat/plot has nothing to do with the grant of statutory approvals/ clearances/amended clearances and for the said act of the OP, complainant 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 complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

6. So far as the defence of the OP that the consumer complaint of the complainant is barred by limitation is concerned, when it has come on record that neither the possession of the fully developed flat/plot was offered to the complainant nor the amount deposited by her was refunded, therefore, there is continuing cause of action in favour of the complainant.  It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
7. The complainant has also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
8. The consumer complaint is further resisted by the OP on the ground that the complainant was required to approach the arbitrator in case he was aggrieved against the OP and the consumer complaint of the complainant is not maintainable before this Commission is also without merit as law on this point has already been settled by the Hon’ble Apex Court in the case of Aftab Singh Vs. Emmar MGF Land Limited & Anr., Consumer Case No.701 of 2015 decided on 13.7.2017 in which it was held that arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Fora notwithstanding the amendment made to Section 8 of Arbitration Act.
9. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed. 

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

1. to refund the amount of ₹38,77,850/- to the complainant 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 complainant from the OP, the complainant shall surrender the ownership and possessory title qua the subject plot(s) to the OP, without having any right, title or interest with the sold plot(s) through sale deeds (Annexure C-10 and C-12) and the OP shall get the land sold legally transferred in its favour through competent authorities and the complainant shall assist the OP for the same.
2. to pay an amount of ₹75,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it 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 02/06/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member