DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA

C.C. No. 359 of 24-12-2020

Decided on : 28-02-2022

1. Ashok Kumar Goyal S/o Sh. Harbilas Rai, R/o Ajit Road, Street No. 1, Bathinda.

2. Surinder Kumar Goyal S/o Sh. Harbilas Rai R/o Ajit Road, Street No. 1, Bathinda.

........Complainants

Versus

1. Royal Empire, Promoters, Developments and Builders Pvt. Ltd., Panchkula Peer Muchhala, Zirakpur, Distt. S.A.S. Nagar, Mohali, having its Regd. Office at House No. 909, Sector -9, Panchkula through its Managing Director/Partner Sh. Jeewan Garg S/o Sh. Atma Ram Garg and Prince Garg.

2. Jeewan Garg S/o Sh. Atma Ram Garg, Managing Director/Partner of Royal Empire R/o # 201, Block F, Peer Machhalla, Zirakpur, Distt. S A S Nagar, Mohali.

3. Prince Garg S/o Sh. Jeewan Garg, Managing Director/Partner of Royal Empire R/o # 201 Block F, Peer Machhalla, Zirakpur, Distt. S A S Nagar, Mohali.

.......Opposite parties

Complaint under Section 35 of the Consumer Protection Act, 2019

QUORUM

Sh. Kanwar Sandeep Singh, President

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. Rohit Goyal, Advocate

For opposite parties : Exparte

ORDER

Kanwar Sandeep Singh, President

1. The Ashok Kumar and another (here-in-after referred to as complainants') have filed this complaint U/s 35 of Consumer Protection Act, 2019, here-in after referred to as 'Act') before this Commission against Royal Empire, Promoters and others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that the opposite parties No. 2 & 3 constituted partnership firm in the name of opposite party No.1 and opposite parties No. 2 & 3 are directly controlling, managing and looking after the works and business transactions of it. The opposite parties advertised that they are developing a residential project under the name and style of Royale Minaar at Peer Muchhala, Zirakpur, District Mohali. The opposite parties claimed that they provide world class facilities in the flats to be developed by them which includes earthquake resistance, RCC Structure, apart from good flooring, bed rooms with wardrobe with modular kitchen with modern 4-burner stove, chimney, double bowl stainless steel sink, laminated wooden flooring in master bedroom, vitrified tiles in other bed rooms, kitchen, drawing and dining room, Hardwood designed decorated main gate and other facilities like Health club, Swimming pool, Gym, Community Centre, shopping complex, physical and electronic security with CCTV cameras, approved fire hydrant system, Wi-fi connectivity EPBAX system, Fancy lights, Two Automatic lifts on each floor, independent garbage duct, One DTH connection, 10 year insurance, Power Back Up good parks etc. with plenty of car parking. The complainants lured by above said advertisement of the opposite parties that they arc providing various facilities in their Housing Project, applied for allotment of one flat each in April 2011.

3. It is alleged that the complainants were allotted one Flat No. 303 Block-C (3BHK) to complainant No.1 and Flat No.103 in Block-C (3BHK) to complainant No.2 in Royale Minaar Project and the complainants made following payments to opposite parties against the above said both Flats in Royale Minaar Project:-

   Sr. No.	Date	Mode	Amount
   Payment	made by	Ashok Kumar Goyal for Flat No. 303-C	(3 BHK)
   1	29/04/11	Receipt No. 23	60000
   II	13/07/11	Ch. No. 513945 OBC receipt No. 180 dated 1-8-2011	360000
   III	08/09/11	Ch. No. 452666 OBC receipt No. 244 dated 16-10-2011	360000
   Payment	made by	Surinder Kumar Goyal for Flat No. 103-C	(3 BHK)
   I	29/04/11	Receipt No. 24	60000
   II	27/08/11	Ch. No. 734358 OBC receipt No. 141 dt. 27-8-11	360000
   III	04/09/11	Ch. No. 734368 OBC Receipt No. 224 dt. 4-9-11	360000

   Total Amount paid by both complainants 15,60000

4. In this way a total sum of Rs. 15,60,000/- had already been paid by complainants to the opposite parties against the allotment of above said two flats.

5. The complainant alleged that as per terms and conditions of the allotment of above said flats, opposite parties were to construct, finalize and make ready for delivery the said flats within 18-21 months from the date of booking, with the facilities duly detailed in the agreement of allotment & in case of delay in delivery of possession of flat, opposite parties agreed to pay Rs.3.50 per Sq. ft. X 1800 = 6,300/- per month as compensation to complainants, against each flat. Accordingly the flats and project was to be fully developed by the opposite parties at the most upto Jan 2013.

6. The complainant further alleged that what to talk of completion of development and construction of flats within stipulated period, the opposite parties even did not start the work of development till the expiry of stipulated period and ultimately on repeated requests of complainants and other applicants who have also paid huge amount for the flats allotted to them, forced the complainants and other persons to swap their allotted flat, with another flat in their (OPs) another project namely Royal Empire, Peer Muchhalla, Zirakpur. The opposite parties assured to adjust the payment already made by the complainants, against the flats allotted in Royale Minaar, in the payment/price of new flats to be allotted.

7. The complainants also alleged that since the complainants were having no other option and choice, so they had to succumb to the dictates of opposite parties and ultimately they allotted /swapped the above said two flat no.103 and 303 of Royale Minaar with flat one and single Flat No.202 in Block-J, with covered area of 1490 sq. ft. and Super Area 1800 sq. ft in another project of the opposite parties called as Royale Empire, which is also situated at Peer Muchhalla, Zirakpur, Dist. Mohali.

8. It is further alleged that the opposite parties demanded the price of newly allotted flat No. 202, Block -J, Royale Empire as Rs.35,00,000/-. The opposite parties sent another fresh agreement to sell dated 28-05-2013. In the said agreement, the opposite parties specifically agreed and admitted that the above said flat at the time of delivery of possession shall have broadly stated in Brochure following specifications:- (a) Earth Quake resistant RCC frame structure as per Seismic Zone-V (b) Laminated wooden flooring in master bedroom, vitrified tiles in other bedrooms, kitchen, drawing and dining room. (c) Modular kitchen double bowl stainless steel sink, glazed tiles upto 2 feet height above counter and chrome plated brass fittings (d) In bathrooms, ceramic and glazed tiles on the walls up to 7-feet height, anti-skid ceramic / granite tiles on floor, chrome plated fittings, shower panel in 2 bathrooms. (e) ISI marked wiring in concealed conduits, protective MCBs, modular switches with sufficient power and Light points, TV and telephone out lets. (f) Hard-wood designed decorated main gate with chowkhat of 8" x 2.5", inner room chowkhot of 6" x 2.5". (g) POP cornices, POP false ceilings and POP punning on walls. Good quality paint in all internal walls and ceilings. One wall in every room painted with textured paint.(h) One DTH connection. (i) Independent garbage duct. (j) Three window AC's and One Split AC. (k) Two automatic lift on each floor.

   (L) Following amenities provided without any extra charge: (a) Health club, Wimming pool, Gym, Community centre and Shopping Complex (b) Physical and electronic security with CCTV cameras. (c) Approved fire hydrant system. (d) Wi-Fi connectivity (e) EPBAX system. (f) 10-year insurance (g) Power backup. (h) Car parking space (i) Fancy Light are included in the cost of the Flat. Same or Equalent will be provided.

9. The possession of the completed Flat is likely to be offered by the First Party within 18-21 months from the date of booking, however, subject to the timely payment by the Second Party, availability of the construction materials, etc. or any change of policy by the Government / Local Authority, etc., Furthermor compensation as specified by the regulatory shall be paid by the First Party for the delay in offering the possession of Flat. The First Party shall inform the second part in writing about the completion of the bask construction of the Flat to enable the Second Party, to carry out any changes/ modifications, as approved by the First Party, in respect of electrical writing at his own cost.

10. On completion of the Flat, after receiving required permission, clearance and sanctions and subject to the receipt of whole consideration money and other dues payable, the First Party shall effect the transfer of the Flat to the Second Party in such manner as may be permissible by law. All costs, charges and expenses in connection with the stamps, registering agreements, deeds assignments, sales deeds, conveyance or any of documents to be executed under these circumstances as well as the professional charges in preparing and getting approved all said documents shall be payable by the Second Party. All the above said terms and conditions are part of above said agreement to sell dated 28.05.2013 so executed by the parties regarding the plot in question

11. The complainants further alleged that the opposite parties after adjusting amount of Rs. 15,60,000/- already paid by complainants, demanded another sum of Rs.8,00,000/- i.e. Rs. 4,00,000/- more from each complainant. The opposite parties issued fresh allotment cum agreement to sell letter dated 28-05-2013 with forwarding letter dated 28-05-2013 addressed to complainants, wherein opposite parties admitted the above said facts, amounts and part payments. Vide said agreement, the opposite parties again assured, undertook, agreed and committed that development of their Royale Empire project would be done very expeditiously and possession of flat No. 202 in J-Block, would be delivered to complainants within 18-21 months from the date of booking. The opposite parties further agreed in the opening and first clause of said allotment letter cum agreement to sell dated 28-05-2013 that if for any reason whatsoever whether within or outside the control of the First Party, the whole or part of the project is abandoned, no claim will be preferred by the Second Party except that the total amount paid by the Second Party with 18% interest p.a. shall be refunded to the Second Party. The Opposite Parties have further assured the complainants that they would provide even more facilities in this newly allotted flat than flats of Royale Minaar which were earlier allotted. As per terms and conditions of allotment letter dated 28-05-2013 also, the opposite parties agreed and undertook to finalize the construction and deliver fully ready to live flat within 18-21 months from the date of said allotment, with the facilities duly detailed above. In this way flats of Project Royal Empire were agreed to be fully developed and offered for possession at the most upto January 2015 i.e. within 21 months from the date of agreement.

12. The complainant further alleged that the opposite parties did not develop even this alternative project and complainants despite making payment of Rs.23,60,000/- have been running from pillar to post, but neither opposite parties fulfilled their promise to complete construction nor obtained completion certificate/occupancy certificate from competent authorities and as such could have not offered to complainants the delivery of possession of flat as per agreement.

13. The complainants alleged that as per the information received from reliable sources by them, the licence of opposite party No.1 has also expired qua project in question and same not been got renewed as mandatorily required. After executing the above re-allotment agreement to sell dated 28.05.2013, the opposite parties again started demanding another sum of Rs. 1,10,000/- regarding flat No. 202 in Block No.J, though the complainants were liable to deposit the same, as no construction and development work even had started by opposite parties till then, but the complainants having no other recourse, deposited said amount also in September 2013 vide Cheque no. 280979 of Yes Bank dated 13.06.2013 worth Rs.60.000/- and another cheque no 005057 of ICICI Bank dated 05.06.2013 worth Rs.50,000/-.

14. It is alleged that as per clause 8 of Agreement to Sell, after completing the construction, the opposite parties were required to offer possessionn of flat to the complainants after obtaining the completion/ occupation certificate from the competent authority by February 2015 but till date opposite parties have failed to deliver the possession of flat allotted to the Complainants. After 28.05.2013 till date, opposite parties never intimated the complainant stating as to what is status of construction of flat in question or of project.

15. The complainants also alleged that they recently learnt that opposite parties have handed over the above said project to some other concern namely Singla Empire, under their secret arrangement and the true owners/ developers are absconding as they have defrauded upon numerous people and some criminal cases have been registered against them and they instead of developing the present project of Block-J and completing construction of flats in question, have now started demanding huge amount of Rs.8,65,000/- on account of enhancement of price of above said flat. Legally opposite parties cannot demand any additional cost of construction from allottees, as specifically mentioned in clause No.5 of agreement to sell.

16. It is alleged that complainant No. 1 himself visited the site of flat allotted and he was astonished and shocked to see that though the complainants hove already paid more than 70% price of the flat in question more than 7 years back, but the opposite parties till date hove not done anything on the site to complete the construction and develop the block J. The opposite parties have merely raised blank and open construction of structure of building only i.e. it is merely unclosed / Khola structure. There is:- i) No arrangement of sanitary, ii) No electricity what to talk of power back up arrangement, iii) No drinking water supply, iv) No flooring work, v) No Wood Work, vi) No fixing of ACs as per the agreement, vii) No false ceiling, viii) No DTH, ix) No garbage unit, x) NO LIFT in the block, xi) No doors fixed on any room, xii) No sanitary work done, xiii) No wall plastered of flats, xiv) No Health club, xv) No Swimming pool, xvi) No Gym, xvii) No Community centre and xviii) No Shopping complex. xix) No Physical and electronic security CCTV cameras. xx) No Approved fire hydrant system. xxi) No Wi-Fi connectivity xxii) No EPBAX system xxiii) No Fancy Light xxiv) No lift is installed in block.

    So, virtually the Construction work of the flat done on the spot is worth name only that some structure has been raised by nothing of sort clone to complete the same till date, as per the terms and conditions of the above said agreement to sell dated 28.05.2013, Hence the flat is incomplete and not as per specifications. Even no parking area has been developed. So the flat is neither live able nor / habitable nor fit for human residence. The opposite parties have even neither refunded the amount deposited by complainants back nor have completed the construction of the flat allotted to the complainants nor they have delivered the actual, physical possession of the flat allotted No.202 in Block-J to the Complainants. The Complainants have never refused to pay the balance amount and are even still ready and willing to pay the balance amount provided the opposite parties deliver possession of the flat allotted to them, which should be duly developed and having all basic amenities and facilities as required as per law and also as per the terms and conditions of the agreement to sell dated 28.05.2013 detailed above, along with compensation on aecount of delay in delivering the possession of the flat allotted to them.

17. It is further alleged that that as per Rule 17 of the Punjab Apartments and Properties Regulation Rules. 1995 framed under section 45 of Punjab Apartments and Properties Regulation Act, 1995 it has been provided: "17. Rate of interest on refund of advance money upon cancellation of agreement:- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of repayment." The opposite parties should have got renewed their licence of colony from appropriate authority of development of project and they are also legally required to become Licence holder of RERA (Real Estate Regulatory Authority of Punjab) but as per the list available on the internet the OPs have not become licence holder of RERA and as such they are openly violating the mandatory provisions of law, due to which the execution of transfer deeds/ conveyance deed and registration of same of block in question cannot be done.

18. The complainants alleged that they are running from pillar to post to get justice and have made various personal visits to opposite parties demanding possession of the flat allotted to them, but the opposite parties have failed to honour their obligation as required under the terms and conditions of Agreement to sell. Since in the present case the Complainants are seeking possession of the flat allotted to them after obtaining completion/ occupation certificates from the competent authority and completing the construction in all respects a per specifications laid down in the Agreement to sell, opposite parties should be directed to handover the possession of the original flat allotted to the complainants complete in all respects within stipulated period of two months alongwith interest for delay in possession and to refund of the excess amount deposited by the complainants alongwith interest at the rate of 15% per annum and in case the opposite parties failed to deliver the possession of the flat allotted to the complainants after obtaining requisite permissions from the competent authorities within two months then in alternative the opposite parties be directed to refund the hard earned money of the Complainants alongwith interest at the rate of 15% per annum from the date of deposit till realization

19. On this backdrop of facts, the complainants have prayed for following directions to the opposite parties :-

20. i)To hand over the actual legal physical possession of Flat No. 202 in Block J Royal Empire, allotted to the complainants, complete in all respects as per specifications laid down in the Agreement to sell dated 28-05-2013 after obtaining completion/occupation certificates from the competent authority within a period of two months from the date or filing the complaint; ii) pay interest 18% p.a. on the amount so deposited by the complainants from time to time, as detailed above, till the date of delivery of possession of flat which should he in consonance with the terms and conditions of agreement. to sell dated 28.05.2013 and said amount may be adjusted / appropriated towards the balance sale price of flat in question with the opposite parties; iii) pay compensation to the tune of Rs: 10.00 lac and litigation expenses to the tune of Rs. 1.00 Lac

21. OR

22. i) in alternative, in case the opposite parties failed to deliver the possession of the flat to the complainants, then the opposite parties may kindly be directed to refund the entire amount so deposited by complainants i.e. Rs.24,70,000/- with interest @ 18% p.a. from the date of deposit till realization and also pay compensation to the tune of Rs.10.00 lac in addition to Rs. 1.00 lac as litigation expenses.

23. Upon notice, Sh. Veer Singh, Advocate, appeared on behalf of the opposite parties but did not file any reply. Thereafter, none appeared on behalf of the opposite parties. As such, exparte proceedings were taken against opposite parties vide order dated 14-9-2021.

24. The complainants led exparte evidence.

25. In support of their version, the complainants have tendered into evidence photocopy of agreement (Ex. C-1 & Ex. C-2), photocopy of letter (Ex. C-3 to Ex. C-6), photocopy of agreement (Ex. C-7), photographs (Ex. C-8 to Ex. C-21), photocopy of Adhaar Card (Ex. C-22) and affidavit dated 24-12-2020 of Ashok Kumar complainant No. 1 (Ex. C-23).

26. The learned counsel for the complainants has reiterated his stand as taken in complaint. In support of his submissions, learned counsel for the complainant has also cited following decisions of Hon'ble State Commission, Punjab Chandigarh :-

    (i) CC No. 393 of 2016 decided on 17-4-2018 case titled Ved Kumari Vs. M.s Royale Empire and others (ii) CC No. 776 of 2019 decided on 5-3-2020 case titled Madhu Bala Vs. Royal Empire and others (iii) CC No. 224 of 2016 decided on 4-8-2017 case titled Om Parkash Garg Vs. Royale Empire and others (iv) CC No. 394 of 2016 decided on 17-4-2018 case titled Kishore Bhardwaj Vs. Royale Empire and others

    Decision rendered by Hon'ble National Commission in the case 2018 (2) CPJ 290 titled Rakesh Anand and another Vs. Royal Empires

27. We have heard learned counsel for the complainant and gone through the case law cited by learned counsel for the complainants.

28. In netshell the case of the complainants is that vide Agreement to Sell (Ex. C-1 & Ex. C-2) both dated 29-4-2011 complainant No. 1 was allotted Flat No. 303 (3BHK) and complainant No. 2 Flat No. 103 (3 BHK) by the opposite parties in Royale Minaaar Project. The complainants paid Rs. 15,60,000/- in total, as detailed in table above, against said two Flats. As per clause 12 of agreement (Ex. C-1 & Ex. C-2), the possession of completed flat was likely to be offered by the opposite parties within 18-21 months from the date of agreement and in the event of delay in handing over of the flat under justifiable reasons to applicants, the opposite parties was liable to pay Rs. 3.50 per Sq. Ft X 1495 Sq. Ft. = 5233/- per month as compensation for the delay. The opposite parties did not offer possession of flat to complainant within the time frame.

29. Thereafter complainants under compelling circumstances, swapped the said two flat No. 103 and 303 of Royale Minaar with Flat one and single Flat No. 202 in Block-J with covered area of 1490 Sq. Ft and Super Area 1800 Sq. Ft.. The opposite parties vide letter dated 28-5-2013 (Ex.C-6) allotted plot No. 202 in Block J in Royale Empire Peermuchalla, Zirakpur, Mohali, project and confirmed that price of new allotment in Royale Empire Project will be same as of old allotment in Royale Minar Project and that an amount of Rs. 23,60,000/- paid against Flats No. 101 and 103 Block C in Royale Minnar, Kishanpura, Zirakpur, District Mohali, would be adjusted towards total consideration and that an amount of Rs. 11,40,000/- was stands to be paid as per terms and conditions of agreement to sell. Accordingly, Agreement to Sell (Ex, C-7) was executed between the parties on 18-5-2013 and as per this agreement total price of the flat was 35,00,000/- out of which Rs. 23,60,000/- was shown already paid and new schedule was given according to which remaining amount was to be charged in installments upto 4-10-2014 and last installment of Rs. 1,60,000/- on possession.

30. Clause 12 of Agreement to Sell (Ex. C-7), reads as under :

31. “The Flat shall be handed over to the second party within 18-21 months from the date of agreement. However, in the event of delay in handing over of the flat under justifiable reasons, to the second party, the first party shall be liable to pay Rs. 3.50 per Sq. Ft X 1800 Sq. Ft = 6300 per month as compensation for the delay to the second party”

32. The complainant has also produced on record photographs of the Flat in question Ex. C-8 to Ex. C-21 which clearly depicts the condition of Flat/project that it is not ready for possession.

33. As per agreement Ex. C-7, the opposite parties were bound to deliver the possession complete in all respects within 18-21 months from the date of agreement and the agreement was executed between the parties on 28-5-2013. If 21 months time is taken from the date of execution of new agreement, the possession was to be delivered on or before 28-02-2015 but by that time, no offer of possession was given by the opposite parties.

34. Sh. Veer Singh, Advocate, put an appearance on behalf of the opposite party but did not file reply and contest the case and even thereafter none appeared on behalf of the opposite parties.. Therefore, the evidence led by complainant remained unrebutted and unchallenged.

35. The learned counsel for the complainant relied upon various decisions, detailed above, which has been decided by Hon'ble State Commission, Punjab, Chandigarh, and Hon'ble National Commission against Royal Empire/Royal Minar, which proved that opposite parties failed to complete the projects as per their committments and litigations/similar cases are pending against the opposite parties.

36. In the case Rakesh Anand and another Vs. Royal Empires (Royal Minar) 2018 (2) CPJ 290 , Hon'ble National Commission, has held :

    “ In the instant case, when the opposite party builder has failed to file their evidence before the State Commission and has failed to put in appearance before this Commission, it is crystal clear that they are not in a position to handover the property to the complainants within the time stipulated in the agreement. We have no option, therefore, but to accept the version of the appellant/complainant that the opposite party is liable to refund the amount deposited by them alongwith interest @18% p.a. in terms of the terms and conditions entered between the parties.”

37. In the case in hand, Clause 1 of agreement (Ex. C-7) reads as under :

    “ If for any reason whatsoever whether within or outside the control of the first party, the whole or part of the project is abandoned, no claim will be preferred by the second party except that the total amount paid by the second party with 18% interest p.a. shall be refunded to the second party.”

38. Keeping in view the evidence led by complainant and decision of Hon'ble National Commission, this Commission is of the considered opinion that non-filing of reply and non-appearance of the opposite parties makes the position crystal clear that opposite parties are not in a position to deliver the Flat in question to the complainants. Thus, there is unfair trade practice and deficiency in service on the part of the opposite parties as they failed to meet out their commitments made with the applicants/complainants and failed to deliver possession of Flat to them despite charging huge amount from them.

39. In view of what has been discussed above, this complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay the amount of Rs. 24,70,000/- (Rupees Twenty four lacs and seventy thousand only) deposited by complainant alongwith interest @ 18% p.a. from the date of deposit of the said amount with the opposite parties builder till realization.

40. The compliance of this order be made by opposite parties jointly and severally within two months from the date of receipt of copy of this order.

41. The complaint could not be decided within the statutory period due to heavy pendency of cases.

42. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    28-2-2022

    (Kanwar Sandeep Singh)

    President

     

     

     

    (Paramjeet Kaur)

    Member