Chandigarh

StateCommission

CC/33/2020

Indu Sharma - Complainant(s)

Versus

M/s Emerging Valley Private Limited - Opp.Party(s)

Amrik Singh Adv.

30 Jun 2022

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	33 of 2020
Date of Institution	:	29.01.2020
Date of Decision	:	30.06.2022

 

Indu Sharma W/O Jyoti Sharma resident of House No. 5716/1, Mahajan Street Lahori Gate, Patiala-147001, Punjab (India).

……Complainant

V e r s u s

 

1. Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director.

 

2. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director.

 

3. Harvinder Singh Behl, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. (deleted vide order dated 18.02.2022)

 

4. Sushil Kumar, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director.

 

5. Saifi Kumar S/o Sh. Ravi Kumar R/O H.NO 317 Sector -21 A, Chandigarh being Attorney of Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh.

....Opposite parties

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS.PADMA PANDEY, MEMBER.

                   MR.RAJESH K. ARYA, MEMBER.

                     

PRESENT:-   Sh.Balwinder Singh, Advocate for Sh.Saroj Malakar, Advocate for the complainant.

                      Sh.J.S. Rattu, Advocate for opposite parties no.1 and 2.

                      Name of opposite party no.3 deleted vide order dated 18.02.2022.

                      Opposite parties no.3 to 5 exparte vide order dated 03.03.2020.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   The facts in brief are that initially, the husband of the complainant booked a showroom in the project of the opposite parties launched by them under the name and Style “Emerging Valley”, Banur Landran Road, Punjab, for which he paid booking amount of Rs.11,000/- on 02.09.2013. Thereafter, some more amount was paid in respect of the said showroom and total amount of Rs.9,22,500/- stood received by the opposite parties till 17.03.2015. It has been stated that the said project was dropped by the opposite parties, as a result whereof, vide letter dated 02.08.2016, Annexure C-10, the company asked the complainant to purchase  2BHK flat  No.TRP1206 in the said project. The opposite parties vide letter dated 05.03.2018, Annexure C-11  issued allotment letter and also possession letter in respect of the unit bearing no.PH-03, SF-09, 2 BHK, in Prahb Homez, Emerging Valley (P) Ltd., Landran Banur Road, Mohali. Vide another letter dated 05.03.2018, Annexure C-12, it was conveyed that possession of the unit will be delivered within a period of three months from the date of registry. Resultantly, registry in respect of the unit in question was got done in the name of the complainant on making payment of Rs.26 lacs towards sale consideration and Rs.36,000/- towards registration charges. It has been stated that thereafter the complainant waited patiently for delivery of actual physical possession of the unit in question but the opposite parties failed to do so, 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. It is necessary to mention here that though in her complaint, the complainant sought directions to the opposite parties to deliver possession of the unit in question alongwith compensation for the period of delay etc., yet, during pendency of this complaint and course of arguments, Counsel for the contesting parties admitted that some major portion of the project in question has been demolished by the Greater Mohali Area Development Authority (GMADA) as the same was found to be illegal. In this situation, it has been argued by Counsel for the complainant that the complainant be awarded alternative prayer of refund of the amount paid alongwith interest, compensation and litigation expenses.

2.           Notice of this complaint was  served upon the opposite parties. Despite service, none put in appearance on behalf of opposite parties no.3 to 5, as a result whereof, they were proceeded against exparte vide order dated 03.03.2020. Name of opposite party no.3 was deleted vide order dated 18.02.2022.
3.           The claim of the complainant has been contested by opposite parties no.1 and 2, on numerous grounds,  inter alia:-
   1. that the complainant was defaulter in making payment towards price of the unit in question;
   2. that she has paid only an amount of Rs.9,22,000/- against total sale consideration of Rs.25 lacs;
   3. that she failed to return the allotment letter dated 22.09.2016 sent to her;
   4. that the complainant did not fall within the definition of “consumer” as initially commercial unit was booked and thereafter only the residential unit was purchased in the name of the complainant;
   5. that possession of the unit was offered to the complainant vide letter dated 05.03.2018, Annexure C-12 but she failed to take over the same;
   6. that in the face of existence of provision to settle disputes between the parties through Arbitration this Commission has no jurisdiction to entertain this consumer complaint;
   7. that registered office of the company has not been made party to this complaint as such the same is not maintainable;
   8. that the privity of contract if any of the complainant was with the company as such this complaint  is bad for misjoinder of opposite party no.2 as necessary party;
   9. that the complainant has concealed material facts from this Commission;
   10. that all permissions/approvals were shown to the husband of complainant at the time of booking of the unit in question;
   11. that this Commission did not vest with pecuniary jurisdiction to entertain and decide this complaint;
   12. that because 100% payment was not made by the complainant therefore buyers’ agreement was not executed between the parties.
   13. that opposite parties no.1 and 2 did not issue the document Annexures C-14 and C-15;
4.           In the rejoinder filed, the complainant reiterated averments of her complaint and also stated that since her case is also similar to that of the facts of the case titled as Gurdev Kaur Thind Vs. Emerging Valley Pvt. Ltd. and ors., CC No. 15 of 2020  decided on 21.12.2020 wherein refund has been ordered by this Commission, as such, she be also granted that relief.
5.           The contesting parties led evidence in support of their case.
6.           We have heard the contesting parties and have gone through the entire record of this case, including the written arguments, very carefully.
7.           First of all, coming to the objection raised with regard to jurisdiction of this Commission with regard to settlement of this case 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 no.1 and 2, in this regard, stands rejected.
8.           Now coming to the objection taken to the effect that the complainant 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 complainant has purchased the unit 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 complainant is a consumer as defined under the Act. As such, objection taken in this regard as such stands rejected.
9.           Now coming to the objection taken regarding pecuniary jurisdiction, it may be stated here that this complaint has 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 this complaint, if the total value of the unit i.e. Rs.26 lacs and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
10.           There is no dispute with regard to purchase of the unit in question by the complainant, in the manner stated in the complaint. There is also no dispute with regard to the fact that despite the fact that in this complaint, substantial amount, referred to above, was received by the opposite parties-Company, from the complainant, yet, agreement has not been executed between the parties. There is also nothing on record that actual physical possession of the unit in question, complete in all respects, i.e. after obtaining occupation and completion certificates has been delivered to the complainant.   

                   It may be stated here that once the opposite parties, in the first instance, had already received substantial amount, from the complainant, it was required of them to execute agreement 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 unit in dispute to the complainant. However, instead of doing that, it is evident from the record that the opposite parties were interested only in raising demands.  Thus, the act of raising demands and receiving substantial amounts, as referred to above, without executing the agreement, 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 this case, the said provision has been violated. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.

11.           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 case, it is evident from the payments receipts that all the payments in respect of the unit in question 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 Private Limited, 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.”

 

 

12.           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 admitted by the Counsel for the contesting parties that major portion of the project 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. 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”

 

13.           At the same time, in the present case 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 no.1 and 2, in this regard, 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 case, 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.   
14.           We are of the considered opinion that in view of the facts and circumstances of this case, we cannot make the complainant 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 case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount 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.
15.           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 company and the complainant 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 in respect of the unit in question took place 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 no.1 and 2 stands rejected.

16.           However, since the opposite parties no.1 and 2 have disputed some amount paid by the complainant, as such, it is necessary to decide this issue also, before concluding this complaint. It may be stated here that we have gone through the payment confirmation letter dated 08.01.2020, Annexure C-15, issued by the opposite parties in favour of the complainant, wherein receipt of amount of Rs.26 lacs in respect of the unit in question has been candidly admitted by them. In this view of the matter, objection taken by the opposite parties in this regard, especially on the face of payment confirmation letter given by the company itself regarding receipt of amount of Rs.26 lacs in respect of the unit in question, stands rejected.
17.           At the same time, it is also held that since it is an admitted fact that actual physical possession of the unit in question was not delivered to the complainant by the opposite parties even by the date, this complaint has been filed, as such, there is a continuing cause of action in favour of the complainant to file this complaint, 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.
18.           For the reasons recorded above, this complaint is party accepted with costs. Opposite parties no.1, 2, 4 and 5, jointly and severally, are directed as under:-

 

1. To refund the amount of Rs.26 lacs 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.
3. Complaint against opposite party no.3 is dismissed with no order as to cost.

 

19.           However, it is made clear that the Bank(s)/financial institution(s), if any, from which the complainant has raised housing loan for making payment towards the unit in question, shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
20.           Certified Copies of this order be sent to the parties, free of charge.
21.           The file 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.