Chandigarh

StateCommission

CC/36/2023

GURDEV SINGH - Complainant(s)

Versus

M/S GUPTA BUILDER AND PROMOTERS PVT LIMITED - Opp.Party(s)

NAVEEN SHEOKAND

22 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	36 of 2023
Date of Institution	:	01.05.2023
Date of Decision	:	22.02.2024

1. Gurdev Singh S/o Mr.Radha Singh, R/o Village Shahpur, Siana Saidan (13), Kurukshetra, Haryana-136128.
2. Balwinder Kaur W/o Gurdev Singh, R/o Ward No.14, Multani Colony, Pehowa, Kurukshetra, Haryana- 136128.

 ……Complainants

V e r s u s

M/s Gupta Builder and Promoters Pvt. Limited, Office at SCO No.196-197, Sector 34-A, Chandigarh through its Regional Manager

 .... Opposite Party

 

BEFORE:     JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MR. RAJESH K. ARYA, MEMBER

 

 Present: -   None for the complainants.

 Opposite party exparte vide order dated 19.12.2023.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This complaint has been filed by the complainants, seeking possession of commercial space bearing no.37 Type Retail, Ground Floor, measuring super area of 1028.77 square feet, purchased by them in the project of the opposite party, launched under the name and style - “GBP Centrum”,  Village Singhpura, Zirakpur, Mohali, Punjab. It is the case of the complainants that despite the fact that they have paid the entire sale consideration to the tune of Rs.1,50,00,000/- against the said unit, yet,  possession thereof was not delivered on or before  26.10.2021 i.e. within a period of 48 months, as envisaged in clause 4 (a) (i) of the Buyer Agreement dated  27.10.2017, Annexure C-2. It has been stated that on the other hand, it came to the knowledge of the complainants that the project has been sold by the opposite party to some other builder.  Under those circumstances, legal notice dated 07.11.2022, Annexure C-4 was also served upon the opposite party seeking delivery of possession of the unit in question but to no avail. Hence this complaint.

2.           Despite deemed service, through affixation by the process server of this Commission, none put in appearance on behalf of the opposite party, as a result whereof, it was proceeded against exparte vide order dated 19.12.2023.
3.           The complainants led evidence, in support of their case
4.           However, on the date of arguments, Sh.Amrik Singh, Clerk of Sh.Sheokhand, Advocate for the  complainants informed this Commission that the said Advocate has submitted that the matter be decided on the basis of written arguments already filed by him on behalf of the complainants. Accordingly, this Commission has gone through the evidence and record of this case, including the written arguments of the complainants, very carefully.
5.           It may be stated here that we have gone through the record of this case and found that the complainants have booked the unit in question vide application Annexure C-1, on making payment of Rs.12 lacs as booking amount, on 05.06.2017. Thereafter, Buyer’s Agreement dated 27.10.2017, Annexure C-2 was executed between the parties, whereby,  the complainants were allotted unit bearing no.37 Type Retail, Ground Floor, measuring super area of 1028.77 square feet, in the project in question.  It is further coming out from clause 2 (a) (Article 2) of the said agreement that the total sale consideration of the unit in question was fixed at Rs.1,50,00,000/- and it has been candidly admitted by the opposite party in clause 2 (b) of the said agreement that the total sale consideration of Rs.1,50,00,000/- already stood paid by the complainants on different dates and balance amount payable has been shown as NIL.  It is further coming out from the said agreement that as per clause 4 (a) (i) thereof, the opposite party committed to deliver possession of the said unit on order before 26.10.2021 i.e. within a period of 48 months but there is nothing on record that possession was ever delivered to the complainants. However, on the other hand, it is the definite case of the complainants that the project in question has been sold by the opposite party to some other builder.  

It is significant to mention here that the allegations leveled by the complainants, in their complaint have gone unrebutted, as the opposite party, chose not to put in appearance, despite deemed service, as a result whereof it was proceeded against exparte.  

6.           It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, in case, the development/construction activities are being undertaken at the project site and the project is not abandoned or sold to any other builder, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/ Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities are being undertaken or not or that the project has been sold to other builder or not, but as stated above, the opposite party even failed to put in appearance despite deemed service, what to speak of contesting the allegations leveled by the complainants, by way of filing written reply and evidence. It is therefore held that in the absence of rebuttal to the allegations made by the complainants, in their complaint, the opposite party has attracted an adverse inference that it has nothing to say in its defence. 
7.           Hard earned money to the tune of Rs.1,50,00,000/- was paid by the complainants with a hope to have their own unit for earning their livelihood. However, their hopes were dashed to the ground, as possession of the unit in question has never been delivered to them and on the other hand, the opposite party has neither preferred to deliver them possession or to refund the amount received alongwith interest. From the peculiar circumstances of this case, it has been proved that the opposite party made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in disadvantageous contract with the developer and suffered financial loss, mental agony and physical harassment. All the facts established that from the very inception there was intent to induce the complainants to enter into the agreement, referred to above, and also intent to deceive  them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite party, which has definitely caused a lot of mental agony, harassment and financial loss to the complainants.
8.           Now the question arises, as to what compensation should be granted to the complainants  in this case for delay in delivery of possession of the unit in question? It may be stated here that Consumer Protection Act has been made to safeguard the consumer rights. In the present case, failure of the opposite  party to  offer and deliver possession of the unit in question, for such an inordinate delay which is still continuing, amounts to deficiency in service. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil  Appeal  No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered.  Thus, in the present case also, if we grant interest @9% p.a. to the complainants  on the entire amount deposited by them in respect of the unit in question, from the committed date of possession i.e. from 26.10.2021, onwards till possession of the unit in question is actually delivered to them, that will meet the ends of justice.
9.           For the reasons recorded above, this complaint is partly accepted with costs against the opposite party and it is directed as under:-
   1. To hand over physical possession of the unit in question, complete in all respects, after obtaining occupation and completion certificates from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
   2. To pay to the complainants  compensation by way of interest @9% p.a. from 26.10.2021 till 29.02.2024 on the entire received sale consideration in respect of the unit in question, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 26.10.2021 till 29.02.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
   3. To pay to the complainants, compensation by way of  interest @9% p.a. on the entire received sale consideration, w.e.f. 01.03.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above. 
   4. To pay to the complainants, compensation to the tune of Rs.75,000/- for causing them mental agony & harassment, deficiency in providing service and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.35,000/- to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.
10.  
11.  
12.           Certified Copies of this order be sent to the parties, free of charge, forthwith.
13.           The file be consigned to Record Room, after completion

Pronounced

22.02.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 Sd/-

(RAJESH K. ARYA)

MEMBER

 

Rg.