Chandigarh

StateCommission

CC/96/2020

Varinder Kumar - Complainant(s)

Versus

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

Deepak Aggarwal Adv.

15 Jul 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	96 of 2020
Date of Institution	:	20.03.2020
Date of Decision	:	15.07.2021

 

Varinder Kumar son of Late Sh.Kimti Lal, resident of House No.2713, Sector 15, Panchkula, Haryana.

……Complainant

V e r s u s

1. M/s Emerging Valley (P) Limited, SCO No.46-47, First Floor, Sector 9-D, Chandigarh through its Managing Director/Director
2. M/s Emerging India Housing Corporation (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh through its Managing Director/Director
3. Sh.Gurpreet Singh Sidhu, Managing Director of M/s Emerging Valley (P) Limited and M/s Emerging India Housing Corporation (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh
2. :- ADAB City Centre, Surya Enclave, SCO No.5, Kharar-Landran Road, Kharar, District SAS Nagar, Mohali, Punjab.
4. Sh.Kamaljeet Singh and Sh.Gurpreet Singh, Director of M/s Emerging Valley (P) Limited and M/s Emerging India Housing Corporation (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh

….Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      SH.RAJESH K. ARYA, MEMBER

 

Present through Video Conference:-

 

Sh. Deepak Aggarwal, Advocate for the complainant.

None for opposite parties No.1 to 3.

Opposite party No.4 exparte vide order dated 21.12.2020.

 

RAJESH K. ARYA, MEMBER

                   This complaint has been filed by the complainant seeking refund of amount of Rs.24,00,000/- allegedly paid by him to the opposite parties, towards purchase of a plot, in their project named ‘Emerging Valley’, Landran Banur Road, District Mohali, Punjab, in resale from one Ajit Singh. It is the case of the complainant that after making payment of the aforesaid amount, neither agreement was executed nor possession of Plot No.214 was delivered to him. On the other hand, after a long period, relocation was offered to him, in May 2018, to a new plot in some other project i.e. ADAB City, Landra-Kharar Road, Mohali at much higher rate than the original rate of the plot initially purchased by the complainant. Under those circumstances, the complainant sought refund of the amount paid but to no avail. During the period intervening, a police complaint was lodged by the complainant as the opposite parties started threatening him, as a result whereof, vide mutual agreement, dated 05.07.2019, Annexure C-4 colly., he was relocated to flat no.31, Tower No.PH11, Ground Floor, Prabh Homes, Emerging Valley, Village Nagari, SAS Nagar, instead of plot aforesaid. However, despite the fact that possession of the relocated flat was committed to be delivered by 04.09.2019,  yet, the opposite parties failed to do so. Hence this complaint.  

2.           The claim of the complainant has been contested by the opposite parties on numerous grounds, inter alia, 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; that this Commission did not vest with pecuniary jurisdiction; that he did not fall within the definition of “consumer” as the plot in question was purchased for commercial purposes; that the complaint filed is barred by time; that the complainant was defaulter in making payment towards price of the plot in question; that this complaint is bad for mis-joinder/non-joinder of parties; that since the Registered Office of the company has not been made a party to this complaint as such the same is liable to be dismissed on this count; that privity of contract is with the company i.e. opposite party no.1 only; that the complainant had paid only Rs.12.50 lacs and not the amount as claimed by him in his complaint.
3.           On merits, purchase of the plot in resale; non delivery of possession thereof; relocation offered in respect of the flat aforesaid; execution of settlement agreement; non delivery of possession thereof also, to the complainant has not been disputed. Remaining averments have been denied being wrong. Prayer has been made to dismiss the complaint.  
4.            The complainant filed rejoinder wherein he reiterated all the averments made in the complaint and controverted those of the written reply filed by the opposite parties.
5.           Despite service, none put in appearance on behalf of opposite party no.4 as a result whereof, it was proceeded against exparte vide order dated 21.12.2020.
6.           The contesting parties led evidence in support of their case.
7.           Since, on the date of arguments, none put in appearance on behalf of opposite parties no.1 to 3, as such, we have heard Counsel for the complainant and have also gone through the material available on record, including written arguments filed by the complainant, very carefully.
8.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of provision to settle the dispute through Arbitration, this complaint is not maintainable, it may be stated here that though we did not find any such document on record, wherein any mention regarding arbitration has been made, still we want to  mention 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 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 the opposite parties no.1 to 3, otherwise also, in this regard, stands rejected.
9.           As far as objection taken by the opposite parties regarding pecuniary jurisdiction is concerned, 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 was required to take into consideration the value of the goods and compensation claimed if any. In the present case, if the total value of the plot in question i.e. Rs.19,76,250/- 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.           An objection has also been 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 plot/flat in question, to indulge in ‘purchase and sale of plots/units’ 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. Objection taken in this regard is rejected.
11.           Now coming to the main dispute qua non delivery of possession of the plot to the complainant, it may be stated here that earlier also,  a similar question 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 respect of the very same project, fell for determination before this Commission in Anjali Dogra Vs. Emerging Valley Private Limited and ors., CC No.80 of 2019, decided on 04.01.2021 and it revealed therein, from the information provided under RTI dated 19.12.2017, by Greater Mohali Area Development Authority (GMADA) that Emerging Valley Pvt. Ltd., 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 was not allowed to sell plot or flat in the said project without obtaining the same (license). Relevant part of the said order is reproduced hereunder:-

“……..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, the complainants while placing reliance on RTI/document dated 19.12.2017, Annexure C-8 (in CC No.156 of 2019) and 20.06.2017, Annexure C-5 in (CC No.80 of 2019), supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority, wherein, it was intimated that the said Company (Emerging Valley Pvt. Ltd.), had applied to get licence to develop a colony;  Letter of Intent (LOI) was issued, but, since the 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 letters 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, recently also when a similar controversy came up for adjudication 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, to convince ourselves, as to whether the allegations  of similar nature as have been 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 also, are correct or not, 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  and 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”

It is settled law that before launching the project and selling the units therein, the project proponent is legally bound to obtain all necessary approvals/permissions/clearances from the Competent Authorities. Whereas, in the present case, as is evident from the afore-extracted information culled out from the enquiry report submitted by the GMADA, it has been proved that the project launched by the opposite parties was farce. Not even licence for launching the project in question has been obtained by the opposite parties, what to speak of obtaining remaining approvals/permissions/clearances from the Competent Authorities. The office of GMADA, from the very initial stage of development of unauthorized project in question, initiated various legal actions with a view to stop the construction and development there but the company did not stop in doing so. Though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard. Written complaints by the GMADA office were also given 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, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions 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 May 2018. Relevant part of the said 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…………”

 

In this view of the matter, plea taken  by Counsel for the opposite parties that the company was in legal position to deliver possession in June 2017 or that the complainant failed to take over possession of the plot in question, being devoid merit stands rejected……”

 

 

13.           The present complaint also relates to the very same project i.e. Emerging Valley Private Limited, Kharar Landran Road, wherein the complainant has purchased the plot in question and was thereafter relocated to a flat in the same very project. Under these circumstances, the contentions raised by Counsel for the complainant to the effect that the project had been launched in complete violation of relevant Rules and Regulations and that now the same stood abandoned and it is not feasible to get legal possession of the plot in question, in near future also, is fortified from the information provided in the Enquiry Report referred to above having been issued by the GMADA and  discussed in Gurdev Kaur case (supra)  to the effect that from the very initial stage of development of unauthorized project in question, initiated various legal actions  with a view to stop the construction and development there but  the company did not stop in doing so; that though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard; that written complaints by the GMADA office were also given 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, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant.
14.           Furthermore, in the present case, deficiency in providing service and adoption of unfair trade practice on the part of the opposite parties is writ large. Despite obtaining substantial amount equal to about 25% of the total sale consideration neither agreement was executed nor, thereafter, possession was offered to the complainant and now it is July 2021. The facts and circumstances of the case reveal that the project is a farce one and as such, we cannot make the complainant to wait for an indefinite period for getting possession of the plot or the relocated flat, which fact is not even feasible on account of the findings given above. The complainant is, therefore, held entitled to get refund of the amount paid alongwith interest @12% p.a. from the respective date of deposit, in view of decision rendered 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 till repayment. The Hon’ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019  and 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, awarded interest @12% p.a. to the complainant, on the amounts to be refunded to them from the respective dates of deposits.
15.           Now coming to the objection raised by the opposite parties, to the effect that this complaint is time barred, it may be stated here that not even a single document has been placed on record to prove that actual legal physical possession of the plot or the relocated flat in question, in a developed project was ever delivered to the complainant. On the other hand, once it has been proved from the afore-extracted information culled out from the enquiry report of GMADA and also the RTI information aforesaid, that the project in question was farce and the opposite parties were not even in a position to launch the same, what to speak of offering possession of units/plots therein, as such, there was a continuing cause of action in favour of the complainant to file this complaint,  in view of principle of law 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/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. 

                   Under above circumstances, the plea taken by the opposite parties no.1 to 3, that the complainant is a defaulter, being devoid of merit stands rejected.

16.           As far as objection taken to the effect that opposite party no.3 has been wrongly impleaded in this complaint, as privity of contract is with the company i.e. opposite party no.1 only;  it may be stated here that Sh.Gurpreet Singh, being Managing Director of the Company is directly involved with the decision-making process therein, as such, he will definitely be jointly and severally liable alongwith the Company, for all the acts done by it (Company). 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. As such, objection taken to the effect that this complaint is bad for mis-joinder/non-joinder of parties, being devoid of merit, stands rejected.
17.           As regards the dispute raised by the opposite parties qua payment made by the complainant, it may be stated here that the complainant has placed on record sufficient evidence by way of documents/receipts to justify his claim of Rs.24 Lakhs. As such, the plea raised by the opposite parties that the complainant paid only Rs.12.50 Lakhs stands rejected.
18.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To refund the amount of Rs.24,00,000/- to the complainant, alongwith compensation by way of interest @12 % p.a. from the date when he paid the amount to the opposite parties, at the time of resale, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.24,00,000/- 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 Rs.50,000/-, in lumpsum, towards compensation for causing mental agony and harassment and cost of litigation 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 of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
19.           In case any loan has been obtained for making payment towards price of the said plot/flat, the bank/financial institution concerned shall have the first charge, against the amount 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

 

15.07.2021.

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (PADMA PANDEY)

          MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

 

 

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