Chandigarh

DF-I

CC/678/2022

LALITA SHARMA - Complainant(s)

Versus

A B APARTMENTS PVT LTD AND OTHERS - Opp.Party(s)

ANIRUDH GUPTA

04 Nov 2024

ORDER

vDISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/678/2022
Date of Institution	:	18/7/2022
Date of Decision	:	4/11/2024

 

Lalita Sharma W/o Late Sh. Paramvir Sharma, Aged 51 years, R/o Krishna Gali No.1, Dhariwal, District Gurdaspur, Punjab-143519 (Presently residing at #3018, Ajanta Enclave, Sector 51-D, Chandigarh-160047)

Complainant

Versus

 

1.       A B Apartments Pvt. Ltd, having its office at SCO 80-81-82, 1^st  Floor, Sector 34-A, Chandigarh through its Director. (Deleted vide order dated 16.3.2023).

2. Preet Land Promoters and Developers Pvt Ltd, having its Office at Village Nannu majra. Near Village Sohana, Sector 86, SAS Nagar, Mohali, Punjab through its Director Kanwaljit Singh.

3. Preet Land Promoters and Developers Pvt Ltd through its CEO Harpreet Singh, having its Office at Village Nannu majra, Near Village Sohana, Sector 86, SAS Nagar, Mohali, Punjab through its Director Raghubir Singh Dhiman.

4. Preet Land Promoters and Developers Pvt Ltd through its CEO Harpreet Singh, having its Office at Village Nannu majra, Near Village Sohana Sector 86, SAS Nagar, Mohali, Punjab through its Director Charan Singh Saini

 

.....Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Anirudh Gupta, Advocate for complainant
	:	OP  No.1 deleted vide order dated 16.3.2023
	:	OP No.2&3 exparte.
	:	Sh. Akshit Grover,  Advocate for OP No.4.

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 floated a scheme of developing a housing project  situated at Sector 86, SAS Nagar Mohali and the complainant on being allured with the promises of the OPs,  booked a plot measuring 10 marlas  with OP No.1, therefore, the project of OP No.1 was taken over by OP No.2 to 4 and the entire land of OP No.1 was taken over by OPs No. 2 to 4. After that OP No.1 entered into an agreement with OP No.2 to the effect that the project of plots booked by OP No.1 shall be allotted by OP No.2 and all the bookings done by OP No.1 shall be transferred by OP No.2. The complainant was allotted registration No. R-411 by the OP No. 2 to 4 for the 10 marla plot. The complainant had paid almost entire amount of Rs. 28,37,500/- till now to the OPs and after receiving the full payment, the certificate of registration was issued to the complainant. The copy of the payment receipts are annexed as Exhibit C-1(colly). Thereafter the OPs sent an allotment letter dated 06.07.2013 to the complainant. The OP's vide Memo No. PLP/PLP-1131/757 allotted plot No. 464(N) measuring 10 marla approx. (hereinafter referred to be subject plot) to the complainant . The allotment letter dated 06.07.2013 is attached herewith as Exhibit C-2. As per the allotment letter, there is no clause which specifically deals with the time frame in which the OP's will grant possession to their customers. The complainant visited the site in July 2015 and was shocked to see that no construction work or any sort of development had taken place on the spot. It is alleged that the OPs never issued any sort of brochure of the housing scheme in question or made it available to anyone. The complainant, after the date of the allotment, visited the office of the OPs several times. A number of calls were made to the official who assured the possession within a shorter period of time but nothing was done.  In this manner, 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. OP No.1 deleted vide order dated 16.3.2023 in pursuance of statement of the even date given by counsel for complainant on the first page of complaint file.
   3. OPs No. 2&3 were properly served and when they did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 19.6.2023 and 16.3.2023 respectively.
   4. OP No.4 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of limitation, maintainability, cause of action, and it is alleged that the prayer of the complainant for  possession is not non-executable  as the OPs do not have any land left with them due to the change  in sector plan and the policies  introduced by the government. The Master Plan of Greater Mohali necessitated an increase in the green area within the sector, the widening of internal roads, and led to the acquisition of land by the Greater Mohali Area Development Authority (GMADA). As a result, the Opposite Parties do not possess any land to hand over to the Complainants. Thus, the  Opposite Parties were compelled to comply with the government policies and the introduction of the Master Plan of Greater Mohali, which resulted in the non-availability of land. The changes were beyond the control of the OPs as a result of which  the OPs have been  severely affected by the acquisition of land by GMADA.  As per the allotment letter, the Complainants are not entitled to claim possession at this point of time. The allotment letter explicitly states that in case of any dispute regarding the land, the allottee must wait until the resolution of such dispute. The Opposite Parties have already approached the Hon'ble High Court of Punjab & Haryana for acquiring alternative land from GMADA in exchange for the land acquired from the builder. Therefore, the Complainants are required to wait until the dispute is resolved as per the terms of the allotment letter  and due to current situation and the legal impediments faced by the Opposite Parties, the Complainants have option either wait for the resolution of the land dispute or opt for a refund, but they cannot insist for possession at this juncture.  In fact the "Mega Project" was launched by the Govt. of Punjab and one of the requirements for the said project was that the said project should have the value to the tune of Rs. 100 crores. The copy of the norms of the Mega Project is annexed as Annexure-R-1.  The OPs applied for LOI in the said "Mega Project" and had shown the total project value to the tune of Rs. 295 crores in 200 acres for sectors 85, 86 and 87. Thereafter OPs issued the LOI in the year 2006. As per the PAPRA norms the total saleable area granted was 65% of the total area and further the OPs entered into an agreement with the GMADA for this Mega Project. As per the agreement GMADA will help the OPs in acquiring 10% of the total land falling in critical gaps. The OPs as per LOI applied for approval of drawings and the same got approved in the year 2009 but the drawings were approved with the changed norms from the LOI with a reasoning that the norms have been changed as per the Master Plan of Mohali which came in the year 2008 and as per the  drawing the saleable area was reduced from 65% to 52.5% and thereby causing a loss of 12.5% saleable area due to which the cost of the project increased manifold. It is averred that there is no deficiency in service on the part of the Opposite Parties as the delay and non-availability of land are due to reasons beyond the control of the OPs and are attributable to government policies and actions. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   5. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
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 on rcord.
   1. At the very outset, it may be observed that when it is an admitted case of the contesting parties that  the OPs had allotted the subject plot bearing No. No. 464(N) measuring 10 marla to the complainant  by receiving Rs.28,37,500/- from the complainant  as is also evident from receipts Annexure C-1 (colly) but the OPs till date have not offered or handed over the possession of the subject plot 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 relief as prayed for, as is the case of the complainant or if the complaint being not maintainable is liable to be dismissed.
   2. As per case of the complainants the OPs have allotted the subject plot bearing No. No. 464(N) measuring 10 marla to the complainant  by receiving entire amount of Rs.28,37,500/-. In order to prove this fact the complainant has proved on record Annexure C-1 which indicates  that the payment of Rs. 17,35,781/- and Rs.4,75,000/- was made by the complainant  towards the subject plot on 12.1.2012.  Annexure C-2 is the allotment letter  which clearly indicates that  the OP No.2 to 4 have allotted the subject plot to the complainant, which also indicates that  the balance amount of Rs.6,26,719/-  was to be paid within 15 days of issuance of allotment letter  and the said amount was paid by the complainant within the stipulated period on 18.7.2013 as is evdent from Annexure C-1 at page 15 of the paperbook of complaint, which proves that the entire sale consideration of the subject plot has already been made by the complainant to the OPs. Annexure C-3 is the email sent by the complainant to the OP builder requesting possession of the subject plot but till date no possession has been offered by the OPs No.2 to 4.
   3. The learned counsel for the complainants has submitted that as it stands proved on record that the OPs 2 to 4  despite of receiving an amount of Rs. Rs.28,37,500/-. from the complainant have not ever offered possession of the subject plot nor they have delivered the possession of the same till date and the said act of OPs 2 to 4 amounts to deficiency in service and unfair trade practice.
   4. On the other hand the learned counsel for the contesting OPs has submitted that most of the area of the OPs No. 2 to 4 have already been acquired by the GMADA and in the alternative no land has been provided by the GMADA  to the OPs 2 to 4  as a result of which  the OPs 2 to 4  could not allot the subject plot to all the members and since no land  is available  with the OPs 2 to 4  for allotment and the OPs 2 to 4  have already approached the Hon’ble High Court against the GMADA regarding which litigation is going on and the complainants are entitled for refund of the deposited amount as per terms and conditions of the agreement and the request of the complainant for possession is not maintainable.
   5.  From the foregoing discussion, as it is proved on record  that the OPs No. 2 to 4 have failed to offer possession of the subject plot to the complainant and more over, they have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant, knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

6. It has thus been proved on record that money had been collected from the prospective buyers including the complainant, 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…………”

7. The 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 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. 
8. Admittedly, no specific time frame has been given to hand over possession by the OPs  and the reasons assigned by the OPs for not handing over the possession itself are vague and the act of OPs of not giving specific time of handing over the possession of the subject ploy in contravention of settled law. The Hon’ble Supreme Court of India in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442,  held as under:-

“…… 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…”

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. In view of the above, it is clear that the OPs were bound to offer possession of the subject flat within a reasonable time of 3 years  but till date the same was not offered, hence, we are of the opinion that the complainant cannot be made to wait for an indefinite period and the OPs, who are not in a position to deliver the possession of the unit(s) as promised, have no right to retain the hard earned money of the complainants.
11. As far as the question as to how the cause of action has arisen to the complainant is concerned,  it has come on record that the OPs  has failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. 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.
12.   In view of above, it is safe to hold that the  aforesaid act of OPs No. 2 to 4, amounts to deficiency in service and unfair trade practice on its part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs No. 2 to 4. Hence, the instant consumer complaint deserves to be allowed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs No. 2 to 4 are directed as under :-

1. to refund  Rs.28,37,500/- to the complainant alongwith interest @9% per annum from the respective dates of deposit till onwards.  
2. to pay ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs No. 2 to 4 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, apart from payment of costs.
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 4/11/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member