Chandigarh

DF-I

CC/342/2021

Ms. Anisha Ms. Anisha Hans - Complainant(s)

Versus

Om Divine Develops & Infrastructure Pvt. Ltd. - Opp.Party(s)

Suneet Sharma

05 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/342/2021
Date of Institution	:	24.5.2021
Date of Decision	:	5/12/2023

 

Ms. Anisha@ Ms. Anisha Hans wife of  Mr. Vikas Hans resident of H. No. 48C, Army Flats, Sector 44-A, Chandigarh 160047 (Earlier resident of H. No. 6C, Sector 44-A, Chandigarh 160047.)

 

… Complainant

V E R S U S

1.       Om Divine Develops & Infrastructure Pvt. Ltd. Regd office H. No.38, Sector 19, Chandigarh 160019 through its Director Mr. Om Parkash.

2^nd Address:-

Om Divine Develops & Infrastructure Pvt. Ltd. office: Adjacent Ansal Orchard, Kharar Landran Road, NH-4, Sector 115, Mohali 14307, through its Director Mr. Om Parkash.

2.       Mr. Deepak Bhatia, Director Om Divine Develops & Infrastructure Pvt. Ltd. regd office H. No.38, Sector 19, Chandigarh 160019.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Leela Dhar, Advocate proxy for Sh. Suneet Sharma, Advocate for complainant
	:	None for OPs (Defence of OPs already truck off vide order dated 24.7.2023).

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 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 company has been engaged in the business of developing and selling housing projects/flats to various individuals, having a developed a residential housing project under the name and style of “Divine World Phase-IV Pavileo” situtated at Kharar- Landran Road, Kharar, District SAS Nagar Mohali (hereinafter to be referred as subject project). The OPs had published various web and news advertisement as well as visual advertisements in order to attract the public at large to purchase the independent floors in the said project and being allured by the said advertisements, the complainant approached the OPs and enquired about their subject project. The complainant was in need of small house  in a good location and after being impressed with a the publicity of OP No.1 and after seeing the brochure the complainant booked the independent floor of 1 BHK measuring 57 Sq. yards bearing No. 44(TF) in the said project.  The complainant had paid an amount of Rs.2,50,000/-  on 2.7.2018,  out of the total sale consideration of Rs.10,50,000/- and  in consequent to it, agreement to sell  Annexure C-1 was executed by the OPs.  It was assured by the OPs that the delivery of the  subject floor complete in all respect would be given on or before 28.2.2019.  As the complainant was required to get loan from the bank in order to pay the remaining amount, she requested the OPs to execute the Builder-Buyer Agreement but with no result. The OPs had told the complainant to wait till 28.2.2019 as the sale deed shall be executed by that date and possession will also be handed over to the complainant.  The complainant kept waiting till 28.4.2019 but nothing has been done by the OPs either to execute the sale deed or deliver the possession of the subject flat to the complainant. The complainant had also told the OPs about the urgency of the physical possession of  subject flat as the complainant had to bring her father from native place  for treatment.  Due to the reluctant attitude of the OPs, the complainant was compelled to hire rent accommodation at the rate 10,000/- per month for almost one year. Thereafter legal notice Annexure
   C-2 was issued by the complainant to the Ops but the same was returned as acceptance of the same was refused by the OPs. Later on the complainant came to know that the OPs were not having full approvals from the statutory authority  at the time of receiving the advance amount from the complainant and the said project was not approved and sanctioned by the competent authority. In this manner, the OPs have extracted money from the complainant on various illegal grounds  and thereby cheated the complainant and  the said act  of OPs amounts to deficiency in service and unfair trade practice on the part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. Though OPs have filed their written version but the same was filed beyond the prescribed period as stipulated under the  Act and the same was allowed to be taken on record subject to costs. Since the cost was not paid by the OPs, their defence was struck off vide order dated 24.7.2023.   

2. In order to prove her  case, complainant has tendered/proved her 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 agreed to purchase the subject flat 44(TF) in the subject project of the OPs by paying an amount of Rs.2,50,000/-  as earnest money out of the total sale consideration of Rs.10,50,000/- and it was agreed upon by the Ops and complainant that the remaining amount of Rs.8,00,000/- shall be paid by her on or before 28.2.2019 and  the OPs even failed to execute Buyer Builder Agreement or sale deed and hand over the possession of the subject flat to the complainant, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of the OPs amounts to deficiency in  service and the complainant is entitled for the relief as prayed for.
   2. Perusal of Annexure C-1, the Agreement to Sell clearly indicates that the OPs have booked flat No. 44(TF) in the project  of the OPs for a  total sale consideration of Rs.10,50,000/- out of which Rs.2,50,000/- was received by the Ops from the complainant. Clause 3 of the agreement further indicates that the complainant agreed to pay the remaining amount of Rs.8,00,000/- to the OPs on or before 28.2.2019. However, the entire agreement is silent about the date by which the possession of the flat will be handed over to the complainant by the OPs, which act is held to be an unfair trade practice on the part of OPs. Thus, in the absence of a specific date of delivery of possession in any of the documents, placed on record, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period in the matter. Thus, if we take a reasonable period of three years from the date of booking of the plot i.e. from 2.7.2018, as period of completion of development works at the project site and delivery of possession of the plot in question to the complainants, which comes to 2.7.2021, in view of principle of law laid down by the Hon’ble Supreme Court of India in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442, relevant part whereof is reproduced hereunder, that will meet the ends of justice:-

“…… Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract…”

3.  The complainant has also alleged that the OPs have launched the project without approvals and the said allegations as well as evidence led by the complainant  have gone unrebutted by the OPs making it clear that the Ops were not  having statutory approval from the competent authority at the time of launching of the project. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required 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…………”

4. In the present case also, there is nothing on record that when expression of interest/applications were invited to sell the said project, clear intimation was given to the intending purchasers that the project sold was in infancy stage and it will take years together before necessary permissions will be provided by the Competent Authorities. Thus the OPs in complete violation of the provisions of PAPRA have launched the project, without seeking permission and collected huge amount from the complainant, which they could not have collected or advertised the project for sale, especially when they were not registered with GMADA.
5. Learned counsel for the complainant contended that   since the OPs have failed to deliver the possession of the subject flat within the reasonable period and also no  Builder Buyer Agreement  was executed, the complainant was not required to pay the remaining installments. In support of his version he put reliance on  the principle of law laid down by the Hon’ble Apex Court qua the payments to be made by the allottees in installments in the case of Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004 wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, payment of further installments was rightly stopped by the purchaser.   Accordingly, the aforesaid plea taken by the OPs in this regard stands rejected.

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 deliver actual physical possession of the subject plot to the complainant, complete in all respects i.e. after providing all the basic amenities,  and execute sale deed on receipt of balance sale consideration, and also Govt. taxes as applicable, from the complainant..
2. To pay delayed compensation to the complainant in the form of simple interest @ 9% per annum on the entire deposited amount w.e.f. the committed date of possession i.e. 2.7.2021 till the delivery of actual physical possession of the subject plot in all respects to the complainant.
3. To pay ₹25,000/- to the complainant as compensation for causing mental agony and harassment to them and also deficiency in providing service and adoption of unfair trade practice;
4. To pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within two months from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(ii) & (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions.
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.

Announced 5/12/2023 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member