Chandigarh

DF-I

CC/443/2022

Dharamjit Kaur - Complainant(s)

Versus

M/s Premium Acres Infratech Pvt. Ltd. - Opp.Party(s)

P.I.P. Singh

05 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                          

Consumer Complaint No.	:	CC/443/2022
Date of Institution	:	19.04.2022
Date of Decision	:	5/11/2024

 

Dharamjit Kaur D/o Lt. Sh. Joginder Singh, through GPA Holder Davinder Singh S/o Sh. Bahadur Singh, R/o Village Sainsarwal, P.O.- Gajjumajra, District Patiala, Punjab-147001.

….Complainant

Versus

 

1.    M/s Premium Acres Infratech Private Limited, through its C.E.O/M.D./Directors/Authorized Signatories/ Authorised Persons

 

Regional Office: The Court Yard City, at TDI, Sector-110, SAS Nagar Mohali, Pb.

 

Head Office: 17/6, Anand Parbat, Industrial Area, Near Gali No.10,  New Rohtak Road, New Delhi-110005.

 

2.    Mr. Parminder Singh Sehgal, Director of M/s Premium Acres Infratech Private Limited. Residential Address:- House No.61-62, Sector 70, S.A.S Nagar Mohali, Pb.

 

Regional Office: The Court Yard City, at TDI, Sector-110, SAS Nagar Mohali. Pb.

 

Head Office: 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi-110005.

 

3.    Mr. Sanjay Jain, Director of M/s Premium Acres Infratech Private Limited,

 

Residential Address: House No. 2235, Sector 21, Chandigarh

 

Regional Office: The Court Yard City, at TDI, Sector-110, SAS Nagar Mohali. Pb.

 

Head Office: 17/6, Anand Parbat, Industrial Area, Near Gali No. 10. New Rohtak Road. New Delhi-110005.

 

4.    M/s Taneja Developers and Infrastructure Limited, through its C.E.O/M.D/Directors/Authorized Signatories/ Authorized Persons

 

Registered office: 9 Kasturba Gandhi Marg, New Delhi-110001.

      

Regional Office: 10 Shaheed Bhagat Singh Marg, New Delhi-110001.

 

5.    Mr. Ravinder Taneja, Chairman TDI Infratech Limited (Formerly, Taneja Developers & Infrastructure Ltd.)

 

Registered Office: 9 Kasturba Gandhi Marg, New Delhi-110001.

 

Regional Office: 10 Shaheed Bhagat Singh Marg, New Delhi-110001.

....Opposite Parties

 

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

 

                                                                               

ARGUED BY	:	Sh. Amarbir Dhaliwal, Advocate for complainant
	:	Sh.Parminder Singh, Advocate for OPs No.1 and 2 Sh.Puneet Tuli, Advocate for OP No.4 and 5
		OP-3 exparte.

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainant through her GPA holder Sh.Davinder Singh against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-      
   1. It transpires from the averments as projected in the consumer complaint that the OPs launched a joint Real Estate project under the name and design of COURTYARD at TDI CITY (Premium Acres Infratech (P) Ltd. (hereinafter referred to as the ‘subject project') at Sector 110-111. SAS Nagar Mohali and advertised the project through electronic means. Being allured by the advertisements, the complainant contacted the OPs somewhere in the month of May 2010 at their Head Office in S.C.O. No. 139-140, Sector- 17-C, Chandigarh and they made promises with regard to the subject project being a world-class Township equipped with all the latest and modern facilities and upon this, the complainant agreed to purchase a residential villa, having built-up area of 2200 square feet (204.38 sq. mtrs. approx.) on a plot measuring 192 square yards at its Head Office in Chandigarh at the composite sale price of ₹55,72,000/-.  The complainant made payment of ₹9.76 lakhs to the OPs through cheque dated 31.05.2010 and accordingly the OPs vide allotment letter dated 08.06.2010  (Annexure C-2) had allotted Villa bearing Unit No.74  to the complainant and thereafter Buyer's Agreement (hereinafter referred to as the ‘agreement’) was executed on 10.08.2011 (Annexure C-3) and as per Clause No.9 of the agreement, the OPs had agreed to hand over the possession within a period of 24 months (18 months plus six-month grace) from the date of the agreement and in case of delay of delivery, the complainant will be compensated by the OPs.  The OPs sent a letter dated 12.01.2012 (Annexure C-4) to the complainant indicating the total sale price of the villa as ₹55.72 lakhs and also acknowledged the payment of Rs.25,26,000/- made by the complainant with the following payment details:-

Cheque Date	Cheque No.		Bank Name	Bank Branch
			Kotak Mahindra	Phase-3B2, Mohali

However, the OPs have failed to complete the construction of the subject unit till date. Whenever she visited India and she requested the OPs to deliver the possession, the matter was delayed by them on one pretext or the other. In fact, the complainant is a divorced lady, presently residing in Canada and she had purchased the subject unit for her personal use as she wanted to stay in the same whenever she visits India for any sort of work or to attend the function/festival. The OPs could not get the required permissions/approvals/licenses from the concerned authorities for the said project and the project was abandoned by the OPs and the same was not registered under the provisions of Real Estate Regulatory Authority (for short ‘RERA’) and there is no likelihood that the subject project will be completed in the near future. A copy of the photographs showing the present status of the subject project is Annexure C-5 (Colly.).The OPs alleged to have violated the provisions of the PAPRA as well as RERA as they have duped the complainant by collecting the huge amount and failed to deliver the possession of the subject unit complete in all respects as per the terms of the agreement. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.

2. OPs No.1,  2 , 4 and 5 resisted the complaint by filing separate written versions.
3. OPs No.1 and 2 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and concealment of facts and the complainant has not approached the Commission with clean hands.   However, it is alleged that the complainant had concealed the facts qua various communications exchanged between the parties and also that her allotment qua the subject unit was cancelled by the previous management of the answering OPs vide letter dated 12.02.2012 (Annexure OP-3). The complainant had failed to make the payment as per the agreement and had even made defaults in payment. In view of Condition No.4(c) of the agreement, even to the said cancellation, the complainant has not responded back in any form. The construction of the subject project was completed by the answering OPs but since the complainant could not make timely payment which was the essence of the contract, the allotment of the subject unit was cancelled and there is no deficiency in service on the part of the answering OPs. However, it is not disputed that the complainant has not made payment of ₹26.25 lakhs. The answering OPs  have already paid the cost of the land to the TDI under the name and head of the complainant and the answering OPs have already offered the possession in the similar properties to other allottees, who have made complete payment and even the sale deeds have been executed in their favour, the complainant has filed the present complaint against them in connivance with Sanjay Jain (Ex-Director) who has been shunted out from the office of the answering OPs along with one Amit Jain and others for defrauding them by producing the forged and fabricated documents and further supplying those forged/fabricated documents to numerous customers/consumers  regarding the FIR has been got registered by the answering OPs.  More than 250 families are residing in the subject project to whom the Electricity and Water Connections have been provided and the complainant has made false allegations against answering OPs. On merits, the facts as stated in the preliminary objections have been re-iterated. However, it is admitted that the complainant got herself registered for a residential villa No.7 for which the allotment letter (Annexure C-2) and later on agreement (Annexure C-3) was also executed, but it is denied that the registration was done in the Head Office at Chandigarh.  Moreover, Annexure C-4 is not available in the record of the answering OPs. The alleged price of ₹55.72 lakhs is not the complete amount as the final cost of the subject unit was to be determined at the end in the form of final invoice. It is denied that the photographs (Annexure C-5 colly.) are correct as the same are odd one. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. OPs No.4 and 5 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability and cause of action.   However, it is alleged that the name of the TDI Infratech Limited  be struck off from the array of OPs as the same is not in any way associated with the selling of the unit to the complainant, as the same was sold and entire consideration amount was collected by OPs No.1 and 2 i.e. Premium acres Infratech Private Ltd only. "Premium acres Infratech Private Ltd" and "TDI Infratech Limited (Formerly known as Taneja Developers and Infrastructures Limited)" are two different legal entities and at no point of time any of the Directors/Managing Director were the same for aforesaid companies. A copy of master data of both the legal entities is Annexure R-2. It is further averred that the Govt. of Punjab, with a view to attract new investments in the State, had formulated Industrial Policy-2003  and TDI Infratech Limited (Formerly known as Taneja Developers and Infrastructures Limited) with a view to setup a Mega Housing Project in village BalloMajra (Mohali) submitted its proposal to Directorate of Industries and Commerce, Punjab to develop an area of 160 acres with an investment of over Rs. 266.50 Crores and the said proposal was accepted by the government and a Letter of Intent was issued in favour of TDI Infratech Limited (Formerly known as Taneja Developers and Infrastructures Limited on 21.12.2005. After that Premium acres Infratech Private Ltd was also one of the companies to approach TDI Infratech Limited for the purchase of some residential plots and accordingly 150 residential plots were sold in favour of Premium acres Infratech Private Ltd and were handed over the vacant possession of the said plots to it and a copy of the agreement between TDI Infratech Limited and Premium acres Infratech Private Ltd is Annexure R-3. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. In separate rejoinders, complainant reiterated the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
6. OP No.3  was properly served and when he did not turn up before this Commission, despite proper service, he was proceeded against ex-parte on 06.02.2023.

2.        In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had booked the subject unit with OP No.1-Company by making payment of ₹9.76 lakhs and accordingly OP No.1-Company had issued the allotment letter dated 08.06.2010 (Annexure C-2) to the complainant with the total cost of the unit as ₹55.72 lakhs and thereafter the agreement dated 10.08.2011 (Annexure C-3) was executed between the parties in which an amount of ₹16.96 lakhs was acknowledged by OP No.1-Company and it was agreed that the possession of the subject unit was to be given to the complainant within a period of 24 months (18 months plus six-month grace) from the date of the agreement and later on the complainant had made further payments to the OPs and the total payment of ₹25.26 lakhs was acknowledged by OP No.1-Company vide Annexure C-4, the case is reduced to a narrow compass as it is to be determined if the the OPs had received the huge amount towards the sale consideration from the complainant without obtaining the necessary sanctions/approvals from the competent authorities for launching the subject project and in this way there is deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs have already cancelled the allotment due to non-payment of the entire cost of the subject unit  and the complainant has no cause of action against OPs No.4 and 5 as they have no concern with the subject unit and the same is liable to be dismissed, as is the defence of the OPs.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the documentary evidence led by the parties and the same is required to be scanned carefully
   3. Perusal of allotment letter (Annexure C-2) clearly indicates that the subject unit was allotted to the complainant by OPs on receiving an amount of ₹9.76 lakhs from the complainant and the total cost of the subject unit was ₹55.72 lakhs and the payment plan was construction linked.  Perusal of the agreement (Annexure C-3) further indicates that OP No.1-Company not only received ₹16.76 lakhs from the complainant towards the subject unit but has also agreed to complete the construction within a period of 24 months (18 months plus six-month grace) from the date of the agreement. Annexure C-4 is the letter vide which OP No.1-Company acknowledged the receipt of ₹25.26 lakhs from the complainant upto 24.12.2011. Annexure C-5 Colly are the photographs which clearly indicates that the subject project was not complete in all respects.
   4. On the other hand, OP No.1-Company  has proved the cancellation letter dated 12.02.2012 (Annexure OP-3) which indicates that they had cancelled the allotment of the subject unit. OP No.1-Company has also proved the copies of the sale deeds executed in favour of other allottees and it is further clear that the aforesaid sale deeds were executed in the year 2019. Annexure OP-5 are the photographs of the other units from which it is clear that even the said units were not complete in all respects. OP No.1-Company  has also proved the pollution certificate which indicates that the same was issued on 06.05.2021 whereas the approval of the revised layout plan indicates that the same was approved in the year 2015.
   5. Learned counsel for the complainant submitted that as it stands proved on record that OPs No.1 and 2 have collected the huge amount towards the price of the subject unit without having requisite sanctions/approvals from the competent authorities for launching the subject project, there is deficiency in service and unfair trade practice on their part.
   6. On the other hand, the learned counsel for OP No.1-Company has submitted that as OP No.1-Company has already sold the units to other allottees and photographs of the units (Annexure OP-5 colly.) indicate that the other units are complete in all respects, however there is no force in the contention of the learned counsel for OP No.1-Company as it stands proved on record that the sale deeds were executed in the year 2019 and the photographs placed on record as Annexure OP-5(Colly) indicate that even incomplete doors and windows of the units were installed, making it further clear that the OPs have collected the huge amount form the complainant and have not completed the construction work of the subject unit till date. 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 unit has nothing to do with the grant of statutory approvals/ clearances/ amended clearances.
   7. It has thus been proved on record that money had been collected from the prospective buyers including the complainant by the OPs, 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…………”

8. 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.
9. Recently, 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 the 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.”

 

10. Not only this, when it has come on record that the possession of the subject plot has not been offered to the complainant, till date, there is continuing cause of action in favour of the complainant. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
11. So far as the contention of the ld. Counsel for OPs No.4 & 5 that they are not in any way associated with the sale of the unit to the complainant as the same was sold and the entire consideration amount was collected by OPs No.1 and 2 i.e. Premium acres Infratech Private Ltd. is concerned, the same stands falsified from allotment letter dated 08.06.2010 (Annexure C-2) which clearly indicates that the subject unit allotted to the complainant is with OPs No.1 and 2 under the agreement with TDI Infrastructure Ltd., 9 Kasturba Gandhi Marg, New Delhi-110001 (Licensee and PAPRA holder from CTP, Punjab). Perusal of the agreement dated 24.12.2009 (Annexure R-3) between the TDI Infrastructure Ltd. and Premium acres Infratech Private Ltd. further indicates that the OPs 3 and 4 are developing the subject project where the complainant was allotted the subject unit by OPs No.1 and 2, hence, it is safe to hold that OPs No.3 and 4 cannot escape from their liability towards the allottees on this ground.
12. 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 pay ₹25,26,000/- to the complainant alongwith interest @ 9% per annum (simple) from the date of its deposits onwards. However, it is further clarified that on receiving the entire amount by the complainant from the OPs, the complainant shall have no right, title or interest over the subject unit.
   1. to pay ₹50,000/-to the complainant as compensation for causing mental agony and harassment;
   2. to pay ₹10,000/- to the complainant as costs of litigation.

5.        This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6.        Pending miscellaneous application(s), if any, also stands disposed off.
7.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

5/11/2024			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member

cmg

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I, U.T. CHANDIGARH

CC/443/2022

PRESENT : None.   :

O R D E R               Vide our detailed order, recorded separately, the consumer complaint has been partly allowed.  File be consigned.

 

5/11/2024			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member