Chandigarh

StateCommission

CC/47/2022

Mr. Mahesh Kumar Pasi - Complainant(s)

Versus

M/s Gupta Builders and Promoters Pvt. Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma Adv.

10 Aug 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Mr.Mahesh Kumar Pasi S/o Mr.Inderpal Pasi, Resident of House No.102, Tulip Tower, Bollywood Heights, Peer Muchalla, Zirakpur, SAS Nagar, Mohali, Punjab-140603.
2. Mr.Balwinder Singh S/o Mr.Sada Ram, Resident of House No.1256, Shivalik City, Sector 127, Kharar, T.C. Kharar, SAS Nagar, Mohali, Punjab-140301.

……Complainants

V e r s u s

1. M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022, through its Managing Director. Email 1D- info@gbpgroup.in
2. Sh. Satish Gupta, Managing Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
3. Sh. Anupam Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
4. Sh. Raman Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
5. Sh. Pardeep Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in

.... Opposite Parties

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1. Seema W/o Mr.Ram Lal.
2. Ram Lal S/o Late Sh.Prakash Ram.

Both residents of Chhot Shimla, New East View Flat, Ground Floor, Behind Dharshan Villa, Chhot Shimla, Himachal Pradesh-171002.

……Complainants

V e r s u s

1. M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022, through its Managing Director. Email 1D- info@gbpgroup.in

2. Sh. Satish Gupta, Managing Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in

3. Sh. Anupam Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
4. Sh. Raman Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
5. Sh. Pardeep Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- Mr.Manoj Sindhi, Real Estate Agent, 419, Sushma Home Work, Zirakpur, Punjab-140603, Email ID:manojsindhi477777770@gmail.com MB. No.9872009509.
7. Mr.Inderpal Singh, Real Estate Agent, 419, Sushma Home Work, Zirakpur, Punjab-140603, Email ID:manojsindhi477777770@gmail.com MB. No.9872009509.

.... Opposite Parties

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1. Gurmail Singh S/o Mr.Tara Singh
2. Mrs. Shamsher Kaur, W/o Mr.Gurmail Singh

Both Residents of House No.34-A, Blossom Enclave, Nabha Road, Patiala, Punjab-147001

V e r s u s

1. M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022, through its Managing Director. Email 1D- info@gbpgroup.in
2. Sh. Satish Gupta, Managing Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
3. Sh. Anupam Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
4. Sh. Raman Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in
5. Sh. Pardeep Gupta, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh, 160022. Email 1D- info@gbpgroup.in

.... Opposite Parties

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Present in all cases:-     Sh.Rajesh Verma, Advocate for the complainants.

                   Opposite parties exparte vide order dated                               28.06.2022.

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   By this order, we propose to dispose of the afore-captioned consumer complaints, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In these complaints, prayer has been made by the complainants, to give directions to the opposite parties either to deliver possession of the units booked or to refund the amount paid towards their respective units. Details qua the units booked; payments made by the complainants to the opposite parties; execution of agreements etc. are given below:-

2.           It is the case of the complainants that after receiving the substantial amounts, as referred to in the chart above, against their respective units, the opposite parties have abandoned the project; that the Directors of the Company are absconding; and that many criminal cases have been registered against them. It has been further averred that since the opposite parties have abandoned the project and there is no possibility of delivery of actual physical possession of the respective units in the near future, as such, the amounts paid by the complainants be refunded alongwith interest, compensation and litigation expenses. Hence these complaints.
3.           Despite deemed service, through emails dated 24.06.2022, respectively, none put in appearance on behalf of the opposite parties, in these consumer complaints, as a result whereof, they were proceeded against exparte, vide orders dated 28.06.2022, respectively.
4.           The complainants in these complaints led evidence, in support of their cases.
5.           We have heard the Counsel for the complainants and have gone through the evidence and record of these cases, including the written arguments filed by the complainants, very carefully.
6.           Counsel for the complainants, in these complaints, vehemently contended that since the opposite parties have abandoned the project; the Directors of the company have left the Country; and there is no possibility of completion of the construction and development activities at the project site and also delivery of actual physical possession of the respective units, in the near future, as such, there is no choice left with the complainants,  than to seek directions to the opposite parties by way of filing these consumer complaint to get their amount back.  
7.           It is significant to mention here that the allegations leveled by the complainants, through their Counsel, in these complaints, to the effect that the project stood abandoned by the opposite parties; that the Directors of the company have left the Country; and that construction and development activities have not been completed at the project site, have gone un-rebutted, as the opposite parties, chose not to put in appearance, despite deemed service, as a result whereof they were proceeded against exparte.  
8.            It may be stated here that 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 and that actual physical possession of the respective units have been delivered to the allottees/purchasers or not, 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 cases, in case, the development/construction activities are being undertaken at the project site and the project is not abandoned, then it was for the opposite parties, 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, but, as stated above, the opposite parties 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 complaints, the opposite parties have attracted an adverse inference, that they have nothing to say in their defence. 
9.           Hard earned money was paid by the complainants, with a hope to have their units. However, their hopes were dashed to the ground when they came to know that the project stood abandoned by the opposite parties and that their Directors have fled away, leaving the project midway. From the peculiar circumstances of these cases, it has been proved that the opposite parties 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 contracts with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the agreements, 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 parties, which has definitely caused a lot of mental agony, harassment and financial loss to the complainants.  
10.           The Hon’ble Apex Court in the case of Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. – (2018) 5 SCC 442 and the Hon’ble National Commission in the case of Parsvnath Exotica Resident Association Vs. Parsvnath Developers Ltd. & Ors., Devidayal Aluminium Industries (P) Ltd.  – IV (2016) CPJ 328 (NC), Subodh Pawar Vs. M/s Ireo Grace Realtech Pvt. Ltd. – CC No. 1998/16 decided on 24.09.18 and Amita Arora Vs. M/s. Ireo Grace Realtech Pvt. Ltd. – C.C.No.696/2017 decided on 27.03.2019, has held that the Courts are at liberty to grant the relief which is justified and warranted in the facts and circumstances of the case and the consumer/complainant cannot be asked to wait for indefinite period for the delivery of actual physical possession of the allotted units. Thus, keeping in mind the peculiar facts and circumstances of the present cases, we are of the considered opinion that if the amount paid by the complainants, against their respective units, is ordered to be refunded alongwith interest and compensation (as there is no possibility of delivery of actual physical possession of the units in the near future, because of the reasons given above), that will meet the ends of justice. 
11.           What is the actual amount(s) paid by the complainants against their respective units is the next question that needs to be adjudicated. 
    1. In CC No.47 of 2022:- It is evident that the opposite parties have received total amount of Rs.1,05,00,000/- i.e. 10 lacs vide receipt dated 07.12.2018, Annexure C-6; 10 lacs vide receipt dated 07.12.2018, Annexure C-7; Rs.30 lacs vide receipt dated 07.12.2018, Annexure C-8; Rs.5 lacs vide receipt dated 07.12.2018, Annexure C-9,  and  Rs.50 lacs vide receipt dated 20.09.2019, Annexure C-10. Thus, it is proved that in this case total amount of Rs.1,05,00,000/- stood paid by complainants to the opposite parties.
    2. In CC No.48 of 2022:- It is evident that the opposite parties no.1 to 5 have received total amount of Rs.52,50,000/- only i.e. 23 lacs vide receipt dated 08.08.2019, Annexure C-1; Rs.2 lacs vide receipt dated 23.08.2019, Annexure C-2; Rs.5 lacs vide receipt dated 22.12.2020, Annexure C-3,    Rs.2 lacs vide receipt dated 22.12.2020, Annexure C-4 and Rs.20.50 lacs vide receipt dated 22.12.2020, Annexure C-5. Thus, it is proved that in this case total amount of Rs.52,50,000/- only stood paid by complainants to the opposite parties. As far as remaining payment of Rs.2 lacs allegedly paid to opposite parties no.6 and 7 are concerned, it may be stated here that since no evidence in this regard has been  placed on record by the complainants, as such, we are no inclined to accept that plea. Thus, it is held that in this case the complainants have paid an amount of Rs.52,50,000/-  only to opposite parties no.1 to 5. 
    3. In CC No.49 of 2022:- It is evident that the opposite parties have received total amount of Rs.52,59,059/- i.e. Rs.4,82,696/- vide receipt, Annexure C-1; Rs.9,65,392 vide receipt dated 06.02.2018, Annexure C-2; Rs.5,69,810/- vide receipt dated 20.08.2018, Annexure C-3,  Rs.5,04,477/- vide receipt dated 28.03.2019, Annexure C-4; Rs.4,99,711/- vide receipt dated 15.06.2019, Annexure C-5; Rs.19,98,873/- vide receipt dated 17.10.2019, Annexure C-6 and Rs.2,38,100/- towards stamp duty on 23.10.2019, Annexure C-7. Thus, it is proved that in this case total amount of Rs.52,59,059/- stood paid by complainants to the opposite parties.
12.           Now, we will deal with the question, as to what rate of interest should be awarded to the complainants, while ordering refund of amounts paid, against their respective units. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he/she had deposited the money in the hope of getting a unit/plot but he/she is deprived of the same; he is deprived of the benefit of escalation of the price of that unit/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new unit/plot and, as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court in  Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a unit/plot and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher.

                   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; Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 and also recently in M/s Phoenix Infra Pvt. Ltd., Vs. Paramjit Kaur Tiwana, FA No.1855 of 2017 decided on 04.05.2022, under similar circumstances has upheld  award of interest @12% p.a. on the amount to be refunded by the developer to the complainants. It is therefore held that if interest @12% p.a. is awarded on the amounts to be refunded to the complainants, in the present consumer complaints, that will meet the ends of justice.

13.           For the reasons recorded above, all these complaints are partly accepted with costs  in the following manner:-

In CC No.47 of 2022, the opposite parties jointly and severally are directed to:-

1. Refund the amount of Rs.1,05,00,000/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant(s), 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. 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.2,50,000/- to the complainant(s), 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.

In CC No.48 of 2022, opposite parties no.1 to 5 jointly and severally are directed to:-

1. Refund the amount of Rs.52,50,000/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant(s), 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. 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.1,35,000/- to the complainant(s), 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 parties no.6 and 7 is dismissed with no order as to cost.

In CC No.49 of 2022, the opposite parties jointly and severally are directed to:-

1.   Refund the amount of Rs.52,59,059/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant(s), 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. 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.1,30,000/- to the complainant(s), 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.

14.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
15.           The files be consigned to Record Room, after completion

Pronounced.

10.08.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PADMA PANDEY)

          MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.