Chandigarh

DF-I

CC/364/2023

NISHA RANI - Complainant(s)

Versus

M/S EMERGING VELLY PRIVATE LIMITED THROUGH ITS MANAGING DIRECTOR/DIRECTOR - Opp.Party(s)

DEEPAK AGGARWAL

02 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/364/2023
Date of Institution	:	26/07/2023
Date of Decision	:	02/04/2024

 

 

Nisha Rani w/o Sanjeev Kumar Gupta, resident of House No.529, Sector 10, HUDA, Ambala City, Haryana

… Complainant

V E R S U S

1. M/s Emerging Valley (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh, through its Managing Director/ Director.
2. Sh. Gurpreet Singh Sidhu, Managing Director of M/s Emerging Valley (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh.

2^nd Address : ADAB City Centre, Surya Enclave, SCO No.5, Kharar Landran Road, District SAS Nagar, Mohali, Punjab.

3. Sh. Kamaljeet Singh, Director of M/s Emerging Valley (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                       

ARGUED BY	:	Sh. Inderjeet Singh, Advocate, Proxy for Sh. Deepak Aggarwal, Advocate for complainant
	:	OPs ex-parte

 

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Nisha Rani, complainant against the aforesaid 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 in the year 2013, OPs had advertised through newspaper, telemarketing, brochure and internet etc. regarding sale of residential plots/flats in their project namely “Emerging Valley, Kharar Landran Road, SAS Nagar Mohali” (hereinafter referred to as “subject project”) and promised to provide all basic amenities such as roads, water lines, sewerage etc.  OPs also assured to have obtained all the requisite permissions from Government/GMADA/ competent authorities including change of land use etc. Being allured, complainant approached the office of OPs for purchase of a 2 BHK flat No.TRI-485 (hereinafter referred to as “subject flat”) in Trinity Homes for her personal use and livelihood having total cost of ₹15.00 lacs.  It was also assured by the OPs that the physical possession of the flat would be handed over to the complainant after obtaining completion/occupation certificate from the competent authorities.  At the time of booking of the subject flat, complainant had deposited an amount of ₹2,00,000/- with the OPs vide cheque dated 24.10.2013, which was acknowledged by them vide receipt (Annexure C-2).  Thereafter, complainant requested the OPs for execution of apartment buyer’s agreement for the subject flat, but, the OPs lingered on the matter on one pretext or the other.  Instead of entering into apartment buyer’s agreement, OPs again compelled the complainant to further pay an amount of ₹1,30,000/-  and threatened that in case she did not pay the same, booking amount shall be forfeited. In this manner, under compelling circumstances, complainant issued cheque of ₹2,12,500/- to the OPs and requested them to adjust an amount of ₹1,30,000/- towards the subject flat and remaining amount to be adjusted for the commercial space purchased by her husband.  Thereafter neither any demand was raised by the OPs nor the apartment buyer’s agreement was executed, rather OPs issued letter dated 15.1.2015 intimating that they had waived off interest and penal charges till 31.12.2015 with respect of the subject flat.  However, even after that, OPs neither executed the apartment buyer’s agreement nor supplied any payment schedule and on the other hand asked the complainant to obtain loan and pay the remaining amount.  Not only this, till date, OPs have not handed over the possession of the subject flat and have delayed the matter on one pretext or the other.  Later on, complainant also came to know that number of consumers are in queue who have been trapped by OPs and number of complaints have been lodged against them as they are habitual defaulters and even non-bailable warrants have also been issued against OP-2, Managing Director of OP-1.  In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs did not turn up before this Commission, despite proper service, hence they proceeded against ex-parte vide order dated 5.3.2024.

2. In order to prove her case, complainant has tendered/ proved evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that she had booked the subject flat with the OPs, having total sale consideration of ₹15,00,000/-, out of which she had paid an amount of ₹2,00,000/- vide receipt dated 5.11.2023 and ₹1,30,000/- vide receipt dated 12.12.2023, as is also evident from copies of receipts (Annexure C-2 & C-3 respectively), the case is reduced to a narrow compass as it is to be determined if OPs, despite of having received an amount of ₹3,30,000/- from the complainant, have failed to either execute the apartment buyer’s agreement and offer the possession of the subject flat or refund the amount to the complainant, and the said acts of the OPs amount to deficiency in service and unfair trade practice and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant.
   2. Perusal of receipts (Annexure C-2 & C-3) clearly indicates that OPs had received an amount of ₹3,30,000/- from the complainant, out of the total agreed sale consideration of ₹15,00,000/-. The case of the complainant is that despite of receiving the aforesaid payment, till date, OPs have neither executed the apartment buyer’s agreement nor have offered the possession of the subject flat to her.  All these allegations made in the consumer complaint stands proved through the affidavit submitted by complainant and the evidence led by her, especially when the same is unrebutted by the OPs.
   3. Not only this, even till date, when OPs have failed to prove on record that they are having requisite sanctions/approvals from the competent authorities for launching the subject project or that they been allowed to sell the flats/plots for which they have already extracted huge amount from the complainant, it is safe to hold that the OPs 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 OPs to obtain all the approvals/ clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining 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.
   4. 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…………”

5. 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.
6. Further, 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 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.”

 

7. 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 OPs are directed as under :-

1. to refund the amount of ₹3,30,000/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment till realisation of the same.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject flat shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹25,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/04/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member